Licence Appeal Tribunal
Release date: 06/28/2021
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:
Allan Chac-Wai
Applicant
and
The Co-Operators Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Claudette Leslie
APPEARANCES:
For the Applicant:
Jeton Memeti, Counsel
For the Respondent:
Emily A. Schatzker, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on August 7, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application for dispute resolution to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
2The parties were unable to resolve the issues at a case conference held on October 7, 2020. Consequently, the matter proceeded to a written hearing.
ISSUES
3The following are the issues to be decided:
i. Is the applicant entitled to cost of examination in the amount of $2,520 for an orthopaedic assessment recommended by All Health Medical in a treatment plan, denied by the respondent on May 5, 2020?
ii. Is the applicant entitled to cost of examination in the amount of $1,950 for a functional assessment evaluation recommended by Finch Health Clinic in a treatment plan, denied by the respondent on July 29, 2020?
iii. Is the applicant entitled to medical benefits in the amount of $2,960.26 for psychological treatment recommended by Pilowsky Psychology in a treatment plan, denied by the respondent on September 17, 2020?
iv. Is the applicant entitled to interest on any overdue payment of the benefits?
v. Is the applicant entitled to an award under RRO 664 because the respondent unreasonably withheld or delayed payments of the benefits?
RESULT
4Considering all of the relevant evidence provided, l find, on a balance of probabilities, that:
a. The applicant is entitled to the cost of examination for an orthopaedic assessment, in the amount of $2,200, plus applicable taxes, and interest is payable in accordance with Section 51 of the Schedule.
b. The applicant is entitled to the psychological treatment in the amount of $2,960.26, and interest is payable in accordance with section 51 of the Schedule.
c. The cost of examination for a functional assessment evaluation in the amount of $1,950 is not reasonable and necessary.
d. An award is not warranted.
BACKGROUND
5The applicant was stopped in bumper-to-bumper traffic due to construction on the day of the accident. His vehicle was rear-ended on the passenger side. The airbags did not deploy, there was no loss of consciousness, and emergency personnel did not attend the scene. He reported the accident at a Collision Reporting Center. He visited his family physician a few days after the accident with complaints including, neck pain, muscle spasms in neck and lower back.
6The applicant owns and operates a construction/renovations company. While he continued to perform his renovations work, he indicated that he had functional limitations, and his work activities were significantly limited. Of note, is the fact that he was also rear-ended at full speed then in a June 2018 accident, as a result of which he had sustained various injuries, including to his neck, shoulder and back. The applicant contends that his injuries were exacerbated by the accident in question, as his pre-accident pain and its side effects were significantly increased.
PROCEDURAL ISSUES
7A couple of procedural issues arose in this case. For clarity, I will address these issues at the outset, as they form part of my analysis and findings.
8Firstly, the applicant takes issue with the fact that the respondent did not conduct Insurer Examinations(“IEs”) before denying the benefits at issue, but instead, conducted the IEs in question after its denial, and especially after the case conference was held (October 2020). In response, the respondent claimed the denials were based on the information it had on file at the time, and, contrary to the applicant’s claim, it had in fact notified the applicant of scheduled IEs before the case conference, upon receiving updated Clinical Notes and Records (“CNRs”) from the applicant.
9I have rejected the applicant’s submissions that the respondent’s IE assessments be disregarded on the grounds indicated. The case conference clearly did not result in a decision being made on the issues, as the matter was set down for this hearing. That being said, the expectation is that on-going adjustment of the file would continue up to the point of a decision on the issues in dispute. In this case, I find nothing unreasonable or procedurally unfair in the respondent’s efforts to gather its own medical information by way of IEs, as part of the on-going adjustment process.
10Secondly, the respondent denounced the telephone format in which the applicant’s assessment(s), in particular the orthopaedic assessment was/were conducted, as being inefficient compared to its later IEs which were done in-person. It suggested that a video-conference assessment would have been better. I take no issue with the format in which the assessment was conducted. Although not provided, any number of factors and circumstances may have guided the physician’s choice of the telephone format. Telemedicine is further validated as a government approved and accredited method of medical practice, implemented in such cases as in this instance where protection from a pandemic is paramount. Notably, in the practice of telemedicine, medical experts are still required to meet their legal and professional obligations, as set out in the policies and regulations document provided by Orthopaedic Surgeon, Ogilvie-Harris.
11A videoconference assessment would no doubt lend itself to a different type of physical exploration. However, in my view, and in a situation of a pandemic, a seasoned, medical professional utilizing an approved and validated form of assessment, does have its merit and should not discredit the outcome. I defer to the discretion and expertise of the physician in choosing to proceed by way of telemedicine as opposed to videoconference. My review of the reports submitted indicate that both the applicant’s medical assessors and the IE assessors, considered similar medical documents, treatment plans, disability certificates, reports and CNRs in their assessments, along with in the applicant’s case, self reporting, and in the respondent’s case, physical examination/observations.
12I find the applicant’s self-reporting relatively consistent, reliable and genuine, in the context of historic, objective evidence and activities. I disagree with the respondent’s claim that the telephone-conducted medical assessment is inefficient and/or should be given less weight.
THE LAW, EVIDENCE AND ANALYSIS
13Sections 14 and 15 of the Schedule provides that the insurer shall pay for medical benefits to or on behalf of an applicant, providing: (i) The applicant sustains an impairment as a result of and accident; and (ii) The medical benefit is reasonable and necessary expense as a result of the accident.
14Section 25(1)3 of the Schedule further establishes that the insurer shall pay for reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose.
15The issue here is not whether the applicant sustained impairments, but whether he is entitled to the orthopaedic and functional abilities evaluation assessments, the psychological treatment, and the related costs indicated. In keeping with the above provisions, the test I must apply is whether the assessments, treatment/costs are “reasonable and necessary”.
16While the Schedule does not define the term “reasonable and necessary”, a realistic interpretation must include consideration of, among other things, the reason for assessment(s) and the goals of proposed treatment. In so doing, I am mindful of the fact that the purpose of an assessment is to investigate whether a condition exists and whether further medical attention is warranted. In the case of medical treatment of any kind, the purpose is self-evident: to relieve an impairment. The burden rests with the applicant to prove on a balance of probabilities, the reasonableness and necessity of the denied assessments/treatment plan.
17Evidence indicates that both parties are generally in agreement in a number of areas: for example, that the applicant’s pre-accident injuries had likely been exacerbated at the second instance, and at sometime during the course of treatment before May 11, 2020, by all indications, it was determined that his injuries were no longer considered to be “minor”, and therefore, not limited to the $3500 treatment limit under the Minor Injuries Guideline (“MIG”).
18The applicant did not take time off work, but he reportedly struggled to attain his pre-accident performance level due to both psychological and physical limitations. Additionally, the applicant reported that he also lacked interest in socializing, he had low mood, frustration and irritability and loss of interest and he had difficulty sleeping, due to both physical pain and thoughts. He was using anti-inflammatory pain medication and THC for some time to manage his symptoms, coupled with physiotherapy treatments approved by the insurer.
Issue (i): Whether the applicant is entitled to of $2,520 for an orthopaedic assessment recommended by All Health Medical in a treatment plan dated April 23, 2020.
19The applicant argues that, as a direct result of the accident, among other things, he had persistent post-accident pain, and despite receiving various types of pain treatment, he still requires further pain relief treatment. He submitted the following evidence in support of his claim.
20Pre-accident CNRs of various physicians (family physician, neurologist, orthopaedic surgeon, and psychologist) confirm that he was suffering from ongoing pain, headaches, as a result of the prior June 2018 accident. June 2019 records note “chronic neck and shoulder pain and tender same.” Similarly, the notes of the applicant’s psychologist, Dr. Pilowsky, dated April 30, 2019, indicate among other things, “…major depressive disorder, PTSD…” The notes of the applicant’s family physician, Dr. Charles Lu, show that the applicant visited Dr. Lu regularly with pain complaints, and that his pre-accident complaints had largely resolved prior to the accident in question.
21In a disability certificate (OCF-3), dated September 9, 2019, physiotherapist, Ayushi Mehra, notes the following impairments as a direct result of the August 2019 accident:
i) Whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs; headache; sprain and strain of cervical spine; sprain and strain of lumbar spine; pain in joint; low back pain; sprain and strain of other parts of shoulder girdle; sprain and strain of thoracic spine; and lumbar and other intervertebral disc disorders with radiculopathy. She estimated, with treatment, his recovery would take more than 12 weeks.
ii) On September 29, 2019, he was referred to family physician Dr. Lu, because of “chronic pain soft tissue strain post MVAx2” wants cannabis”
22The CNRs provided by Care Plus Physiotherapy Clinic indicate that the applicant received multiple physiotherapy treatments for his pain complaints. Specifically, the CNRs dated September 23, 2019 indicate that the applicant demonstrated “Tenderness, hypertonicity and muscle guarding in affected areas of neck, low back, knees and shoulders. Also, swelling is noted in Lt shoulder and neck muscles and lumbar spine due to trauma. Also, overhead movements are restricted due to impingement of shoulder.” Furthermore, the CNRs from September 2019 to January 23, 2020 indicate that the applicant attended more than 12 sessions of physiotherapy treatment at the clinic.
23On April 23, 2020, orthopaedic surgeon, Dr. Darrell Ogilvie-Harris in a treatment plan (OCF-18) stated that, among other things, the applicant’s ability/inability to carry out his job tasks. At that point, eight months after the accident, Dr. Ogilvie-Harris indicated that the injuries the appellant sustained “could have an effect on his response to treatment.” Specifically, the physician observed that the applicant reported difficulties with work and everyday personal activities, including prolonged sitting, standing, walking, squatting, kneeling, pushing, pulling, prolonged overhead activity, as well as sleep issues. Dr. Ogilvie-Harris indicated that the applicant faced barriers to recovery, including his pre-existing injuries, severity of injuries, multiplicity of injuries, and psychological stress and anxiety. Nonetheless, he proposed a treatment plan, which in his estimation would among other things, reduce the applicant’s pain, increase his strength and range of motion, and ultimately return him to normal living. He also recommended that the applicant pursue psychological consultation and treatment, as well as consult with his family physician. Notwithstanding the respondent’s denial of the OCF-18, the applicant pursued the recommended assessment.
24This May 11, 2020 assessment and the resulting above treatment plan in question, was conducted by Dr. Ogilvie-Harris by phone, as part of his COVID/telemedicine practice. As part of the assessment the applicant reported that, although he was not knocked unconscious, he felt pain immediately in his neck and left shoulder, and that he experienced headaches and dizziness.” He confirmed that the physiotherapy and rehabilitation treatments he had received for some time, helped with his recovery. When the treatments ceased sometime in January 2020, he reported that his recovery worsened.
25Regarding his work, the applicant told the physician that he was unable to do such things as drywalling and tiling. As a result, he not only had to hire sub-contractors, but also “turned down job [sic] that involved a lot of drywall”. Coupled with reviews of a disability certificate, CNRs of treating physicians, including a neurologist and a psychologist, as well as X-ray(s), ultrasound, Dr. Ogilvie-Harris as part of the assessment, considered and interpreted the information contained in three validated questionnaires completed by the applicant. The physician determined as follows: 1) Pain, as recognized by the American Medical Association, indicated, “moderate pain-related functional limitations.” 2) Central Sensitization inventory indicated features of a chronic pain syndrome. 3) In the World Health Organization (WHO) Disability Assessment Schedule which measures burden of disease in 6 domains, the, indication was he had “minimal disability in self care, mild to moderate in cognition, moderate to severe in mobility, getting along, participation and life activities.”
26Dr. Ogilvie-Harris concluded that the accident caused further soft tissue damage, which according to medical studies “may include tearing of muscles and ligaments, damage to discs of facet joints”, and that along with the applicant’s pre-existing problems, could make recovery harder. He determined that the applicant would benefit from treatment supported by scientific literature, as follows:
a) Re-conditioning of the spine and extremities involving, progressive core stability and non-impact cardiovascular and respiratory condition;
b) Pain management modalities as per his physician, including the use of CBD; and
c) Appropriate mental health care
27Further, medical undertakings include as follows. On July 14, 2020, the applicant saw, Chiropractor, Dr. Andrew Haluskay who proposed a treatment plan(OCF-18) with the objective of, among other things, “for pain reduction and to enable his return to activities.” He further indicated that a Functional Abilities Evaluation (“FAE”) assessment would also be beneficial, and the applicant followed through on August 22, 2020. Then, the applicant submitted to a physiatry Insurer Examination (“IE”) on October 30, 2020, followed by a psychological IE on October 31, 2020. At that time, it was just over a year since the accident occurred.
28The respondent takes an opposing position. It does not deny the fact that the applicant had some pre-accident injuries and that he was diagnosed with Post Traumatic Stress Disorder (“PTSD”) in June 2019, among other impairments. According to the respondent, the applicant settled his accident benefits claim arising from the 2018 accident in June 2019. The applicant also continued periodic visits to his family doctor, Dr. Lu, after the accident in question and into the spring of 2020. According to the respondent, its denial of the orthopaedic assessment was appropriate for a number of reasons, including on the basis of the information on file at the time.
29For example, at the time of the orthopaedic assessment, the applicant had already been diagnosed with chronic pain, the soft tissue injuries he had sustained were considered treatable under the non-MIG limit, and, in the respondent’s estimation, he was responding well to treatment and had stopped taking pain medication. The respondent further argued that Dr. Lu could have referred the applicant to a less costly, orthopaedic surgeon whose services are covered under OHIP, instead of one, such as Dr Ogilvie-Harris, whose services were not. In the respondent’s estimation, there was no need for the orthopaedic assessment, as during the course of his treatment, the applicant’s physician had previously referred him to a pain specialist, Dr. Gale.
30As indicated above, I have deferred to the physician’s judgement in regard to the telephone assessment conducted by Orthopaedic Surgeon, Ogilvie Harris. By contrast, the respondent points out that its IE assessments involved a complete, full, physical, in-person assessment of the applicant. It stands by Dr. Saad Naaman’s physiatry assessment conducted on October 30, 2020, and the doctor’s diagnosis that the applicant had sustained “cervical sprain/strain, lumbar sprain/strain”, and that he may have exacerbated pre-existing injuries, which the doctor opined would have resolved within three months post-accident.
31Notably, Dr. Naaman’s examination, conducted more than a year post-accident, revealed among other things, ”tenderness to palpation over the trapeziums, muscles, thoracic paraspinal muscles and rhomboids, bilaterally…cervical lumbar spine, range of motion was almost full in all direction…” As for the applicant, he consistently reported that he was experiencing, neck/trapezius pain, low back pain, neck pain, puffiness and problems with sleep. He was forthcoming in his reports that he had attended “…physio 2 x per week until COVID shutdown…” and that he had not returned since as he found physiotherapy was not helpful (including, TENS, laser, massage therapy and stretching exercises…). He also told Dr. Naaman that the medication he was taking was not helping.
Is the orthopaedic assessment reasonable and necessary?
32I find, based on the sufficiency, of relevant evidence before me, that it is in this case.
a) The applicant has not returned to all of his pre-accident activities, especially his employment duties, due to pain/limitations as indicated in the IE assessment, over a year later in October of 2020.
b) Regarding the credibility of his self-reporting, I find as follows. The fact that the applicant was forthcoming and consistent in the information he provided to the medical practitioners including the IE assessor for example, that his pre-existing injuries had largely resolved; the nature of treatment and medication he has consistently pursued; his work functions and the type of limitations that he encountered, leads me to believe that the applicant’s self-reporting was likely genuine. His explanation as to why he had not pursued/engaged in further rehabilitative treatment since January 2020 as being due to the fact that the entire country was in the early stages of the COVID-19 pandemic, halting personal interactions, is also plausible in my view.
c) In the October 2020 physiatry IE assessment, the applicant reported that physiotherapy treatment, “TENS, laser, massage therapy and stretching exercises…” was not helping him. Prior to this, in a February 2020 consultation with pain specialist Gale, to whom he was referred by this family physician, the applicant indicated that that he had stopped taking all drugs, as they were not helping his recovery and making him sleepy. Hash oil was prescribed then. I find no reason to doubt his explanation as to why he had stopped taking the pain medication
33Considering the evidence as a whole, I find that the applicant had taken steps on an ongoing basis to mitigate his injuries and was clearly, constantly searching for ways and expertise to assist him in managing his accident related impairments. In this case where he submitted that previous treatment was no longer helping at this late stage, and although there is no clear indication that his family doctor referred him to seek orthopaedic expertise, in my view, it was reasonable for the applicant to explore orthopaedic medicine on his own. Whether he did so through OHIP, as the respondent suggested, or through the accident benefits system, is immaterial. There is no requirement for the applicant to do so through OHIP, especially in this case where accident related injuries are involved. In any case, the issue before me is not whether the applicant picked the correct avenue to explore orthopaedic medicine, but rather whether the orthopaedic assessment was reasonable and necessary. The goal of the accident benefit system is to return the applicant to the position he was in prior to the accident. The indication is that previous treatment was not helpful. In my view, the applicant should not be denied the opportunity to explore other avenues of treatment of his own choice, in this case orthopaedic as indicated in Dr. Ogilvie-Harris’ OCF-18, to among other things, determine whether he sustained musculoskeletal injuries. I find that the orthopaedic assessment is therefore reasonable and necessary.
The Cost of the Assessment
34The cost of the assessment is broken down as $2,000 for the assessment, $200 for the preparation of the treatment plan (OCF-18), $60 for transportation, and $260 for applicable taxes, totalling $2,520. Section 25(5)(a) caps the payable amount for the fees and expenses of an assessment at $2,000. The respondent finds it concerning that Dr. Ogilvie-Harris does not provide a breakdown as to the duration of the telephone assessment, the medical documentation review, or of the questionnaires. Despite its concerns, the respondent provides no alternative amounts/calculations for consideration. I will defer to Dr. Ogilvie-Harris’ legal and medical obligations in this regard.
35The $2,000 maximum for the assessment is payable by the respondent, as is the cost for the OCF-18 claim form of $200. I agree with the respondent that in this case where the assessment was conducted by phone, there is no basis, nor does the applicant submit any, for a $60 transportation cost. Therefore, the total amount the respondent is required to pay is $2,200; plus, applicable taxes.
Issue (ii): Whether the applicant is entitled to the cost of examination in the amount of $1,950 for a functional assessment evaluation recommended by Finch Health Centre Inc.
36Both the applicant’s self-reported evidence and the expert medical opinions before me, including that of Dr. Ogilvie-Harris, indicate that the applicant demonstrated features of chronic pain and is consequently working with chronic pain. Dr. Ogilvie-Harris further indicates that studies from both the US and Canada show that workers with chronic pain are marginal workers. As such, Dr. Ogilvie-Harris surmised that the applicant’s work life expectancy should be further evaluated.
37Consequently, on July 14, 2020, the applicant followed up with chiropractor, Dr. Haluskay who proposed a treatment plan (OCF-18) with the objective of, among other things, “pain reduction and to enable his return to activities.” While the applicant had returned to work with modified responsibilities, the doctor indicated that a FAE assessment would also be beneficial and was necessary to obtain current, accurate, objective findings regarding the applicant’s abilities. He conducted a Functional Capacity Evaluation on August 22, 2020. During this assessment Dr. Haluskay observed that the applicant had lost range of motion in his hips, low back and right wrist, and had limited or decreased ability to lift, carry, reach overhead, or “bend and reach”. He recommends that the applicant remains on modified duties (no heavy lifting or carrying, no repetitive overhead reaching and bending); and that he undergoes, “extensive multidisciplinary rehabilitation program for a duration of 8 weeks. At the end of the 8 weeks, he recommends that the applicant should be reassessed.
38The respondent submits that there was no medical documentation on file supporting the need for the FAE. Furthermore, it noted that the applicant had continued to work and has been engaging in appropriate treatment for his injuries. It also stands by Physiatrist Naaman’s IE report of October 2020, in which he noted that while the applicant’s pre-accident injuries may have been exacerbated, with treatment, they should have already been resolved at three months post-accident.
Is the FAE reasonable and necessary?
39All considered in my view, the FAE is not reasonable and necessary. It was clear from the applicant’s consultation with and assessment by orthopaedic surgeon Ogilvie-Harris, that his functional abilities had been compromised as a result of accident related injuries.
a) The applicant had already modified his work responsibilities, including sub-contracting work, at the time of the assessment;
b) If as indicated the purpose of the evaluation was to determine the applicant’s physical abilities, the FAE was not necessary as the applicant was already aware of his accident related limitations and had taken steps to address them. Alternatively, if the purpose of the evaluation was to facilitate the development of a recovery program, the FAE was not necessary because Dr. Ogilvie-Harris had already proposed a treatment plan to achieve the same objectives.
40In my view, the FAE revealed nothing new, a recovery treatment plan was already proposed and there was no uncertainty as to whether he would be unable to recover with treatment or continue functioning in his present role as a contractor in the future. Further, there was no indication of potential loss of work life expectancy due to the accident-related impairment or concerns regarding his capabilities in his chosen line of work, that would warrant the assessment. I therefore find the functional abilities assessment was not necessary nor reasonable.
Issue (iii): Whether the applicant is entitled to $2,960.26 for psychological treatment recommended by Pilowsky Psychological Professional Corporation.
41The following evidence provides insight into the applicant’s accident-related psychological health. The applicant was under the care of psychologist, Dr. Pilowsky with whom he consulted on multiple occasions both in regard to the prior June 2018 accident, and the August 2019 accident.
a) In a January 3, 2020 consultation, the psychologist’s diagnosis is similar to that of the previous accident; on April 30, 2020, the doctor conducted a Zoom assessment to determine the extent of the applicant’s psychological difficulties. Dr. Pilowsky notes that the applicant’s recovery from the previous accident had been thwarted and his psychological problems arising from the prior accident were exacerbated by the August 2019 accident. Dr. Pilowsky opined, based on the applicant’s self-reporting and psychodiagnostics tests, that the applicant continued to be disturbed by the accident(s), had an ongoing difficulty coping with pain, and demonstrated some level of depression, anxiety and PTSD. She notes that although the use of CBD/THC helped to some extent, the applicant’s sleep was interrupted by pain and ruminating thinking, and he continued to be fatigued and nervous while driving a vehicle.
b) On June 8, 2020, Dr. Pilowsky conducted the first of two, telephone reassessments. She opined that the applicant continued to be disturbed by "the sequelae of his motor vehicle accident.” In a treatment plan, dated August 24, 2020, and a re-assessment report dated September 3, 2020, Dr. Pilowsky recommended additional mental health therapy, including 12 sessions of mental health therapy.
c) At the time of the disputed treatment plan/assessment, Dr. Pilowsky notes that the applicant had completed 9 of 12 approved psychotherapy sessions. Notwithstanding, Dr. Pilowsky found that the applicant remained afflicted by psychological symptoms, some of which had improved since his return to work. For example, she found his feelings of uselessness, nightmares, and flashbacks had been reduced. Dr. Pilowsky reported that the applicant still demonstrated psychological symptoms, and that he would benefit from further psychotherapy beyond the remaining 3 sessions.
42Relying primarily on the IE assessment conducted by psychologist Dr. Jay McGrory on October 31, 2020, the respondent takes the view that the applicant does not require further psychotherapy. Utilizing and/or reviewing, in-person observations, self-reported information, various medical reports, disability certificates, CNRs and psycho-diagnostic testing similar to that of Dr. Pilowsky, Dr. McGrory found that the applicant did not exhibit any significant psychological concerns, despite the applicant’s reporting that the had some limitations regarding heavy lifting and other heavy chores, as well as significant difficulties with anxiety or panic attacks. The doctor concluded that from an emotional standpoint related to the August 2019 accident, the applicant was doing well, and he exhibited no significant impairment.
Is the psychological treatment plan reasonable and necessary?
43All considered and on a balance of probabilities, I find the treatment plan dated September 17, 2020 is reasonable and necessary. The goal of the accident benefit system is to return the applicant to his pre-accident position. The evidence indicates the applicant has not fully returned to all of his pre-accident contractor duties and still experiences pain and some consequential psychological offshoot. It is also undeniable that active treatment, including psychotherapy has helped his recovery. This fact has not been contradicted by any evidence.
a) Dr. Ogilvie-Harris found that the applicant had features of chronic pain syndrome with central sensitization. Based on his expertise in orthopaedic medicine and pain management, he found that appropriate treatment must include rehabilitative pain management, including the use of CBD/THC, and mental health care.
b) While the IE assessors (physiatry and psychological) conducted over a year post-accident, both concluded that the applicant’s impairments would have resolved in 3 month’s post accident, I am also mindful of Psychologist’s Dr. Pilowsky observations that, “each patient responds differently to psychological treatment.” She notes that it is for this reason that it is important to state the number of psychotherapy sessions that are likely warranted. Furthermore, the fact that there was a period when, due to the pandemic, the applicant could not have sought or received treatment of any kind, in my view, undoubtedly impacts the length of time for his recovery.
44The evidence indicates that by engaging in combined physical therapy, pain management (by way of CBD/THC), and psychotherapy, the applicant was able to realize improvements in his accident-related injuries resulting from both accidents. I find the August 24, 2020 treatment plan proposing further psychological treatment is reasonable and necessary. Based on past realities, the treatment will no doubt, along with other modalities of treatment, help the applicant recover from lingering, pain and related psychological issues, sleep issues, pre-accident functioning limitations. The applicant is therefore entitled to the treatment plan in the amount of $2,960.26 as stated, plus interest on any overdue payment amount.
Issue (iv): Whether the applicant is entitled to an award under RRO 664 because the respondent unreasonably withheld or delayed payments of the benefits.
45Section 10 of Regulation 664 (RRO 664) permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) is entitled at the time of the award together with interest on all amounts then owing (including unpaid interest), if it finds that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments of the benefits in question.
46In this case, the applicant submits that he is entitled to an award, because: 1) denials of the benefits in question were not based on medical evidence but rather, on the whim of the adjuster(s); 2) the fact that the insurer initiated and conducted IEs after the case conference; and 3) the IE assessors’ conclusions were inaccurate. Contrary to the applicant’s claims, the respondent stated that its denials were based on the information it had on file at the time of denial, the IEs were scheduled, and the applicant was notified of same, before the case conference, and that it stands by its IE assessors’ conclusions.
47The test for a special award is whether the insurer unreasonably withheld or delayed payment of the disputed claims. Considering the submissions of both parties, I find nothing unreasonable in the respondent’s actions and considerations in its adjustment of the file.
48Firstly, the respondent denying the claims based on the evidence it had on hand at the time, in my view was not unreasonable. There is no requirement for the respondent to secure further medical information if it believes it had sufficient information on hand to respond to the claim. Secondly, I accept the respondent’s submissions that the IEs were scheduled before the case conference was held. Even if they had not been scheduled until afterwards, as indicated at the outset, it would not have been unreasonable or prejudicial to do so at anytime as part of the insurer’s on-going responsibility to adjust an open claims file. Thirdly, I recognize that both the applicant’s and the respondent’s assessors are experts in their respective fields. Notwithstanding, they clearly have opposing views or disagree about the reasonableness and necessity of the benefits at issue, even after consideration of similar medical documentation/evidence and observations. A disagreement, in of itself, cannot be considered unreasonable simply because the applicant believes the insurer, or its assessors got it wrong. An award is not warranted under the circumstances before me.
Issue (v): Whether the applicant is entitled to interest
49In accordance with section 51 of the Schedule, the applicant is entitled to interest on all/any overdue, incurred payments of the amount of $2,200 plus applicable taxes for issue (i), the orthopaedic assessment, and in the amount of $2,960. 26 for issue (iii), the psychological treatment.
CONCLUSION and ORDER
50While both parties submitted Tribunal decisions for consideration, I note here that I am not bound by another member’s decision. At the same time, while I recognize that the issues determined in these decisions may be similar, the circumstances, including the mechanics of the accident and the evidence provided, vary in each case. For this reason, in determining the merits of this matter, I have focused my attention primarily on the particulars, facts and the relevant evidence provided in this case.
51I order that:
i. The respondent shall pay the cost of examination in the amount of $2,200, plus applicable taxes, for an orthopaedic assessment recommended by All Health Medical in a treatment plan dated April 23, 2020.
ii. The respondent shall pay medical benefits in the amount of $2,960.26 for psychological treatment recommended by Pilowsky Psychology in a treatment plan denied by the respondent on September 17, 2020.
iii. The applicant’s claim for the cost of examination in the amount of $1,950 for a functional assessment evaluation recommended by Finch Health Clinic in a treatment plan denied by the respondent on July 29, 2020, is dismissed.
iv. The applicant’s claim for an award under RRO 664 is also dismissed.
Date of Issue: June 28, 2021
Claudette Leslie, Adjudicator