Released Date: 07/23/2021
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:
Jaleel Musah
Applicant
and
Zenith Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Sevda Guliyeva, Paralegal
For the Respondent:
Jonathan Heeney, Counsel
HEARD:
Via written submissions
OVERVIEW
1The applicant was injured in an accident on October 16, 2018 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). As a result of his injuries, described as sprain and strain injuries, headache, malaise and fatigue, sleep disorders and stress, he sought payment for treatment of his accident-related injuries. The respondent approved some of the treatment plans in dispute, determining that they are partially reasonable and necessary, the remaining ones were denied. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
Cost of Examinations
a. Is the cost of examination expense in the amount of $298.90 ($1,995.00, less $1,696.10 approved) for a psychological assessment recommended by Scarborough Medical Centre in a treatment and assessment plan dated December 11, 2018, denied on March 19, 2019, reasonable and necessary?
b. Is the cost of examination expense in the amount of $2,000.00 for a chronic pain assessment, recommended by Scarborough Medical Centre in a treatment and assessment plan dated July 8, 2019, denied on July 23, 2019, reasonable and necessary?
Medical Benefits
c. Is the medical benefit in the amount of $1,844.42 ($3,963.64, less $2,119.22 approved) for psychological services recommended by Scarborough Medical Centre in a treatment plan dated January 15, 2019, denied on January 28, 2019, reasonable and necessary?
d. Is the medical benefit in the amount of $1,923.04 for physiotherapy services, recommended by Scarborough Medical Centre in a treatment plan dated September 10, 2019, denied on October 3, 2019, reasonable and necessary?
e. Is the medical benefit in the amount of $3,714.49 for virtual exercise therapy, recommended by Scarborough Medical Centre in a treatment plan dated April 3, 2020, denied on April 15, 2020, reasonable and necessary?
f. Is the medical benefit in the amount of $2,356.95 ($3,305.00, less $948.05 approved) for psychological services, recommended by Scarborough Medical Centre in a treatment plan dated April 30, 2020, denied on May 6, 2020, reasonable and necessary?
g. Is the applicant entitled to interest on any overdue payment of benefits?
Income Replacement Benefits
h. Is the respondent entitled to a repayment of income replacement benefits in the amount of $11,192.81 (less $9,000.00 already paid) having notified the applicant on August 15, 2019?
3In its submissions, the respondent confirms that the applicant has repaid the income replacement benefit in full. In addition, on the evidence, issue 2e. is not in dispute. Therefore, the decision will focus on the remaining treatment plans in dispute.
FINDINGS
4Based on the evidence, I find the following:
Cost of Examinations
a. The applicant is not entitled to the balance of the cost of examination expense for a psychological assessment; and
b. The applicant is entitled to the chronic pain assessment.
Medical Benefits
a. The applicant is entitled to the treatment plan for physiotherapy in the amount of $1,923.04; and
b. The applicant is not entitled to the balances of the treatment plans for psychological treatment.
ANALYSIS
5Under s. 15(1) of the Schedule, an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. The applicant bears the onus to prove that the specific benefits he claims are reasonable and necessary for his accident-related injuries and impairments.
Are the cost of examination expenses reasonable and necessary?
Psychological Assessment
6To be eligible for payment for a treatment and assessment plan under to the Schedule, the applicant must demonstrate that it is reasonable and necessary. In order to do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost (time and monetary) of achieving the goals is reasonable.
7With regards to the psychological assessment, the applicant has not established that the balance is reasonable and necessary.
8The applicant submits that he has “incurred the cost of most of the treatment plans”, as he still suffers from post-accident psychological symptomatology. Other than providing submissions that the cost of the treatment plan has been incurred, I am not directed to any evidence that the denied portion of the treatment plan is reasonable and necessary.
9The respondent relies on three s. 44 reports from psychologist Dr. Lee. In the initial report dated February 27, 2019, which addressed the psychological assessment, Dr. Lee diagnosed the applicant Adjustment Disorder, and found that the treatment plan for the assessment was partially reasonable and necessary.
10The initial treatment plan proposed 12 hours for the assessment. The respondent approved 10 hours, plus the cost of completing the treatment plan. The applicant has not provided evidence that the remaining balance is reasonable and necessary.
11As noted earlier, the onus remains on the applicant to establish on a balance of probabilities that the treatment he seeks is reasonable and necessary. I am not presented with persuasive evidence that satisfies that onus.
12As a result, I find that the balance of the psychological assessment is not reasonable and necessary.
Chronic Pain Assessment
13I find that the applicant is entitled to the chronic pain assessment as he has provided sufficient evidence to meet his burden of proof that it is reasonable and necessary for assessing his accident-related injuries.
14The respondent relies on its s. 44 assessor report from Dr. Lee dated October 8, 2019, in response to the treatment and assessment plan. In his report, Dr. Lee opines that in the psychological assessment report of Aparna Sekhar dated January 12, 2019, there is no diagnosis of a Somatic Symptom Disorder and no explicit recommendation for any such chronic pain evaluation. Dr. Lee concluded that the treatment and assessment plan was not reasonable and necessary.
15In order for a chronic pain assessment to be reasonable and necessary, there should be some evidence that such a condition exists. On the evidence, I find that the ongoing reliance on pain medication; the fact that he was not able to return to his pre-accident employment; despite getting a position in another physically demanding job, the level of demand is different; his ongoing complaints of neck and back pain, supports that an investigation into whether he suffers from chronic pain is reasonable.
16I am persuaded by the medical evidence that the applicant relies on, and agree that the treatment and assessment plan for a chronic pain assessment is reasonable and necessary.
Are the medical benefits reasonable and necessary?
Physical treatment
17I find that the applicant has established on a balance of probabilities that the disputed treatment plans are reasonable and necessary.
18The treatment plan for physiotherapy provided the following justification for the proposed treatment:
Patient experiences significant pain with prolonged sitting, driving, carrying, lifting, bending, keeping the same posture for a long time, holding arms over head. Activities that require strength and endurance are difficult to perform due to significant loss of active range of motion and diminished strength. Residual discomfort with keeping certain body positions for a long time. Difficulties sleeping, concentrating and ongoing psychological issues.
The goal of the treatment plan would be reached through various treatment modalities.
19The treatment plan for virtual exercise therapy notes the following for the proposed treatment:
Patient has ongoing difficulty with activities entailing prolonged postures and activities entailing strength and endurance, due to significant loss of active range of motion and diminished strength. Patient feels emotional distress in response to pain and is experiencing anxiety. Patient’s social interaction was highly affected as due to physical and psychological condition. His ability to engage in his activities of daily living is being adversely affected.
20In support of his claim for treatment, the applicant submits that the proposed physical treatment plan is reasonable and necessary as a means to address his ongoing pain complaints, as well as the impacts that his pain is having on his daily activities. The applicant relied on his family physician’s clinical notes and records documenting his accident-related pain complaints, as well as treatment provider records and reports.
21In response, the respondent argues that the applicant’s physical injuries are soft tissue in nature, and that given the duration of time that has passed since the accident, these injuries and associated pain complaints would largely have resolved. The respondent relies on the reports of its assessors in support of its denial and/or partial denial of the treatment plans.
22Upon review of the evidence, the clinical notes and records, particularly those from the family physician, up to as recently as March 2020, note that the applicant is still present with post-accident pain symptomatology. The applicant reported to his own assessors as well as to the respondent’s assessors that he still has ongoing neck and back pain. Further, that the physical treatment he has received has been helpful in providing relief from his accident-related pain, an outcome that has been well-established to be a valid treatment goal.
23The treatment records from Scarborough Medical Centre (“SMC”) show that the applicant was able to participate in active treatments and continue to work at his physically demanding job due to pain relief and a reduction in pain and improvement with respect to range of motion. In particular, the clinical notes of SMC note improvements from yoga sessions and the education aspect also proved beneficial. The applicant submits that the medical documentation clearly shows that he has benefitted from the treatment received from SMC and this is supported by the records of his family physician.
24The respondent relies on its s. 44 assessors’ reports which note that objective testing points reveals that the applicant suffered uncomplicated physical injuries. Physical examination revealed signs of improving myofascial injuries without any significant functional limitation. The s. 44 assessors opined that further facility-based treatment was not needed and that the treatment plans for physical treatment were not reasonable and necessary.
25I note that the applicant has also been instructed on how to do self-directed home exercises.
26To conclude, I find that the applicant is entitled to the physiotherapy treatment plan, as I find it is reasonable and necessary.
Psychological Treatment
27Regarding the psychological treatment, the applicant has reported having anxiety, fear of being a passenger and being more cautious when driving. Post-accident, the applicant was diagnosed with an Adjustment Disorder by his own assessors and the s. 44 assessors. Treatment recommendations were in the form of a) counselling from the family physician, b) the agreement from the s. 44 psychological assessor that treatment was partially reasonable and necessary, and c) the treatment plans.
28I find that the applicant has not established on a balance of probabilities that further psychological treatment is reasonable and necessary.
29Based on a review of the evidence, the applicant reported to the s. 44 assessor that he has had significant improvement from the psychological sessions he has participated in. The treatment plans initially proposed 90-minute sessions, the respondent, subsequently approved 60-minute sessions, after which the applicant reported marked improvement.
30In response, the respondent argues that the applicant has failed to show how the 90-minute sessions are reasonable and necessary versus the reported improvement from the 60-minute sessions.
31I agree with the respondent.
32As noted earlier, the onus is on the applicant to establish on a balance of probabilities that the treatment sought is reasonable and necessary. I find that the applicant has not met his onus.
33The applicant reported to the s. 44 psychological assessor that he had experienced significant improvement in his psychological well-being. While this is indicative that the treatment plan goals were met, this is not enough to establish that the remaining balances are reasonable and necessary.
34I disagree with the applicant’s submissions that he continues to suffer from significant psychological impairment as a result of the accident. The medical documentation shows that he was not prescribed any psychotropic medication, and that he only received counselling. While I am aware of the benefits of the counselling, I find that this is not sufficient to warrant further facility-based treatment. I am not directed to any evidence that supports that the applicant still requires further 90-minute sessions of counselling. On the evidence, it would appear that the psychological treatment has achieved the goals set out in the treatment plans, within the partially approved 60-minute timeframes.
35I find the reports from the s. 44 assessor persuasive and I find no reason to interfere with the respondent’s determination to partially approve the treatment plans for 60-minute sessions. There is no medical opinion from any of the assessors or treatment providers on the applicant’s behalf that rebuts the respondent’s position. Further, there is no medical evidence that supports that the applicant has suffered significant psychological setback after reporting notable improvement from his counselling sessions.
36In conclusion, I find that the balances of the psychological treatment plans are not reasonable and necessary.
ORDER
37For the reasons set out above, I order the following:
Cost of Examinations
a. The applicant is not entitled to the balance of the cost of examination expense for a psychological assessment; and
b. The applicant is entitled to the chronic pain assessment in the amount of $2,000.00. Interest is payable pursuant to s. 51 of the Schedule.
Medical Benefits
c. The applicant is entitled to the treatment plan for physiotherapy in the amount of $1,923.04, payable with interest, pursuant to s. 51 of the Schedule; and
d. The applicant is not entitled to the balances of the treatment plans for psychological treatment.
Released: July 22, 2021
__________________________
Derek Grant
Adjudicator