Licence Appeal Tribunal File Number: 20-004245/AABS
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:
Barbara Telfer
Applicant
and
Traders General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Thomas Enright, Counsel
For the Respondent:
Danielle Ralph, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Barbara Telfer, (“the Applicant”), was involved in an automobile accident on February 13, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied certain benefits by Traders General Insurance Company (“the Respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute for this hearing are:
Is the Applicant entitled to the costs of examination in the amount of $2,520.00 for a physiatry assessment recommended by All Health Medical Centre in a treatment and assessment plan dated August 29, 2018?
Is the Applicant entitled to interest on any overdue payment of benefits?
Is the Applicant entitled to an award pursuant to Regulation 664 because the Respondent unreasonably withheld or delayed the payment of benefits?
BACKGROUND
3The Applicant was the driver of a vehicle which was struck from behind by another vehicle while she was waiting at a traffic light. She sought no medical attention at the scene of the accident and was able to drive her vehicle to the collision reporting centre. The Applicant met with her family physician, Dr. W. Bokore later the same day with complaints of neck, back, and shoulder pain. The Applicant was examined and diagnosed with acute cervical and lumbosacral myofascial strains. She was advised to engage in physiotherapy and take anti-inflammatory medication and muscle relaxants.
4The Respondent initially characterized the Applicant’s injuries as a predominantly minor injury and subject to the Minor Injury Guideline and the $3,500.00 funding limit on treatment. The minor injury characterization was cited in the September 5, 2018 letter, when the Respondent denied funding for the disputed physiatry assessment plan, dated May 30, 2018.
5About a year following the accident, following an insurer’s examination (“IE”) assessment, the Applicant was removed from the MIG. The Respondent agreed with the Applicant that she sustained psychological injuries as a result of the accident. Despite their eventual agreement on the Applicant’s psychological health condition, the Respondent maintained that the disputed physiatry assessment is not reasonable and necessary. This position was relayed to the Applicant by way of letter dated February 13, 2019.
ANALYSIS
6The Applicant may be entitled to the disputed physiatry assessment if she can prove that it is reasonable and necessary for her accident related injuries. In simple terms, she is required to show contemporaneous objective evidence that there are grounds to suspect that she has the condition for which she seeks the assessment.
7The Applicant submits that the disputed assessment is reasonable and necessary because her condition is of a chronic nature and because she was diagnosed with chronic pain. To her, it is reasonable to investigate whether there is any diagnosis not yet contemplated and any treatment regimens not yet recommended. Lastly, she submits that the Tribunal should not deprive her of the right to be examined by a professional of her choosing. To the Applicant, her case is analogous to Z.E.A.R. v. Gore Mutual Insurance Company (“Z.E.A.R.”)1
8The Respondent submits that the disputed physiatry assessment was not reasonable at the time it was submitted and is not reasonable now. It submits that the Applicant’s medical practitioners recommended physiotherapy for her sprain and strain injuries and none of them recommended a physiatry assessment.
9I find no contemporaneous objective evidence to show that a physiatry assessment is reasonable and necessary for the Applicant’s accident related injuries. To me, the development of chronic injuries later does not automatically entitle the Applicant to a physiatry assessment proposed two years prior.
10In the Applicant’s situation, the chronicity of her ongoing pain was not clear until updated CNRs were disclosed in late 2020, after she filed her application with the Tribunal. Whereas, the physiatry assessment in dispute was proposed at about seven months post-accident. During this time, Dr. Bokore recommended that the Applicant treat her injuries with physiotherapy and prescription medication.
11The Applicant changed family physicians to Dr. R. K. Saito, in mid March 2018. Dr. Saito also maintained that she should engage in physiotherapy and take medication for her ongoing pain. The Applicant visited Dr. Saito a little more than once a month until the September 17, 2018 and, during each visit, Dr. Saito continued to recommend physiotherapy and medication. During one visit, Dr. Saito referred the Applicant to an internal medicine specialist, Dr. S. K. Silverberg. Dr. Silverberg assessed the Applicant on August 28, 2019 and diagnosed her with soft tissue injuries. No additional treatment recommendations were made. Notably, the physiatry assessment plan in dispute was drafted the day after the Applicant was assessed by Dr. Silverberg.
12The insurer’s examination (“IE”) and report by Dr. A.S.H. Kam, physiatrist, concluded that the physiatry assessment was not reasonable and necessary. Dr. Kam assessed the Applicant, noted her complaints of headaches, cervical and lumbar spine pain, sleep issues, depression and anxiety. Dr. Kam found that the Applicant presented with some tenderness, but examination revealed functional range of motion in all plains in the neck and back. Dr. Kam determined that the Applicant suffered from minor injuries causing no impairment and that a physiatry assessment would be redundant because the Applicant has no accident-related impairment. An addendum IE report dated January 27, 2021 noted that Dr. Kam reviewed the Applicant’s family physician records, yet Dr. Kam maintained the same opinion.
13The Applicant had an assessment performed by a medical practitioner of her choosing, funded by the Respondent. Dr. I. Robertus, physician, examined the Applicant on September 26, 2020, 11 days prior to when the Applicant incurred the physiatry assessment, and more than two years after the disputed physiatry assessment plan was created. Dr. Robertus determined that the Applicant suffered from chronic pain syndrome as a result of the accident and made several recommendations. The recommendations included a multidisciplinary chronic pain treatment program, nerve blocks, at-home TENS unit, analgesic cream, cervical pillow, heating pad, MRIs of the cervical and lumbar spine, bilateral shoulder ultrasounds, in-home assessment to determine her housekeeping and attendant care needs, neurological assessment, an orthopaedic assessment, and continued consultation with her family physician. Notably, there is no recommendation for a physiatry assessment. To me, it is not reasonable to fund the cost of the physiatry assessment in light of the chronic pain assessment and the results recorded in the corresponding report.
14Lastly, though it was not raised at the time the physiatry assessment was denied, I agreed with the Respondent that the disputed assessment is duplicative of the chronic pain assessment by Dr. Robertus. While the Applicant submits that Dr. Robertus has a focus on pain in the nervous system and mental health symptoms related to chronic pain conditions and Dr. Ghouse is a rehabilitation expert with a focus on functionality, I find no difference between the services provided by the assessors. This is because the examinations, conclusions and recommendations in the reports by Dr. Ghouse and by Dr. Robertus are remarkably similar, including recommendations for in-home assessments to assess the Applicant’s day-to-day functioning and provide adequate support.
15The Applicant’s case is distinguishable from Z.E.A.R. The Applicant in Z.E.A.R participated in a psychological IE and was diagnosed by the IE assessor with certain psychological injuries. However, the Respondent in that matter denied the Applicant’s claim for a psychological assessment because it determined that the Applicant’s psychological injuries were minor, and that treatment was only necessary if symptoms persisted. Here, the Applicant did not present contemporaneous evidence to show that she required a physiatry assessment, the IE assessor did not diagnose her with chronic pain syndrome, and the disputed physiatry assessment was denied because it was not reasonable and necessary based on the IE examination results and report, which concluded that her soft-tissue injuries, at that time, were rightfully treated within the MIG.
CONCLUSION
16The Applicant presented with predominantly minor injuries and was subject to the MIG. It was later determined that she sustained psychological injuries and, later after that, was diagnosed with chronic pain syndrome as a result of the subject accident.
17However, the physiatry assessment plan dated August 29, 2018 is not reasonable and necessary. The plan was submitted while the Applicant was subject to the MIG and more than two years prior to the Applicant being diagnosed with chronic pain. The OHIP-funded physicians that the Applicant saw around the time the physiatry assessment was proposed all agreed that she sustained sprain and strain injuries which should be treated with medication and physiotherapy. The fact that the Applicant was diagnosed with chronic pain syndrome more than two years later does not make the physiatry assessment reasonable and necessary.
Released: February 17, 2022
Brian Norris
Adjudicator