Licence Appeal Tribunal File Number: 19-005784/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:
Alam Zeb
Applicant
and
Economical Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Sulaiman Mangal, Counsel
For the Respondent:
Hermina Nuric, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant, Alam Zeb, was involved in an automobile accident on June 30, 2016, and sought benefits from the respondent, Economical Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule").
2The respondent denied certain medical and rehabilitation benefits claimed by the applicant under the Schedule. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
a. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,108.32 for physiotherapy treatment recommended by Physio Therapy Plus in a treatment plan (OCF-18) submitted on April 11, 2017 and denied on May 18, 2017?
b. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,486.00 for a chronic pain assessment recommended by Access Rehab Inc., in a treatment plan (OCF-18) submitted on January 15, 2018 and denied on April 4, 2018?
RESULT
4The applicant is entitled to the disputed physical therapy. He is not entitled to the Chronic Pain Assessment. The respondent shall pay a total of $3,108.32 plus interest calculated in accordance with s. 51 of the Schedule.
ANALYSIS
5Section 15 of the Schedule requires insurers to pay for all reasonable and necessary expenses for medical treatment and assessments incurred by an insured person as a result of an accident. Sections 38 and 39 of the Schedule set out the procedures for claiming medical and rehabilitation benefits. It is well-established that the onus rests with the claimant to establish entitlement to benefits: Scarlett v Belair Insurance, 2015 ONSC 3635.
6The applicant claims two Treatment and Assessment Plans (OCF-18s). The first, dated April 17, 2017, is for physical therapy in the amount of $3,108.32. The second, dated January 15, 2018, is for a Chronic Pain Assessment.
The applicant is entitled to the disputed physical therapy
7The applicant submits that the respondent denied the disputed physical therapy (consisting of 24 sessions of chiropractic care) without justification. He submits that it was improper for the respondent to rely on the opinion of an Insurer's Examiner who had never reviewed the plan and was assessing the applicant's entitlement to an income replacement benefit. The applicant submits that the proposed treatment is reasonable and necessary because it cites pain reduction as a goal of treatment, a goal that the clinical records show was being achieved.
8There is no requirement for an insurer to subject each individual claim to a separate Insurer's Examination. The respondent submits that the Insurer's Examination assessing the applicant's entitlement to income replacement took place two weeks after the physical therapy was proposed and that the opinion was contemporaneous to its receipt of the treatment plan. The respondent submits that Dr. Osama Gharsaa's physical examination findings remain relevant to determining entitlement to this medical benefit.
9I find nothing improper in the respondent's reliance on an Insurer's Examination focused on other claimed benefits as a basis for its denial of the physical therapy. I do not accept that the respondent failed to give adequate reasons for its denial.
10Nevertheless, I find the proposed physical therapy reasonable and necessary as a result of the accident. In making this determination, I have given significant weight to the clinical notes and records of the applicant's family physician, Dr. Iqbal Chaudhary, preferring them over the opinion of Dr. Gharsaa, the respondent's orthopaedic surgery assessor.
11The applicant sustained soft tissue sprain and strain injuries as a result of the accident. These injuries are documented in an August 11, 2016 Disability Certificate and in the clinical notes and records of Dr. Chaudhary. Dr. Gharsaa found no objective signs of ongoing impairment attributed to the accident, opining that the applicant's soft tissue injuries would have healed by May 2017.
12However, it is apparent from the record before me that the applicant's soft tissue injuries had not healed by the time the disputed physical therapy plan was submitted in May 2017. Dr. Chaudhary's clinical notes and records show that the applicant continued to complain of pain due to his accident-related injuries well past the submission date of this treatment plan. On several occasions, Dr. Chaudhary recommended physiotherapy, chiropractic care, and massage to treat the applicant's pain symptoms. In March 2017, Dr. Chaudhary went so far as to refer the applicant for chronic pain management. And in August 2017, months after the disputed treatment plan was denied, Dr. Chaudhary again referred the applicant to physiotherapy and massage for severe neck and back pain, symptoms Dr. Chaudhary noted the applicant had been experiencing since the accident.
13The respondent questions the causation of the applicant's ongoing pain complaints. It submits that the applicant had significant pre-accident pain at various body sites, and that the applicant has failed to satisfy the "but for" causation test in respect of his impairments.
14The test for causation in the accident benefits contest is set out in Sabadash v. State Farm et al, 2019 ONSC 1121 [Sabadash]. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be "a necessary" cause. There is no need for the applicant to prove that the accident alone caused her impairment.
15The applicant has shown that the accident was "a necessary cause" of his impairment. While I am alert to the respondent's submissions as to the applicant's pre-existing pain in his low back, left arm and shoulder, and neck, Dr. Chaudhary nevertheless attributed severe neck and back pain in August 2017 to the June 2016 accident. Dr. Chaudhary's opinion on the causation of the applicant's pain was made with knowledge of the applicant's pre-accident medical history, including a work stoppage due to disabling pain in December 2015.
16Dr. Gharsaa opines that the applicant's pre-existing underlying osteoarthritis and pre-existing neck pain might have added "an extra month or two" to the three-month recovery process typically associated with soft tissue injuries. Dr. Gharsaa stated "I would expect his injuries sustained in the motor vehicle accident to have healed by now." While I appreciate Dr. Gharsaa's evidence as to the standard trajectory of recovery from soft tissue injuries, I find his opinion on the causation of the applicant's ongoing pain to be tentative. He offers no alternate explanation as to the cause of the applicant's pain. The applicant's recovery may not have aligned with the timeframes commonly associated with soft tissue sprains and strains. However, given the complexity of the applicant's history and his numerous injuries and conditions (including a stroke), it is not unreasonable to assume that his recovery time could be longer. I ground my finding of the reasonableness and necessity of physical therapy in the clinical observations and recommendations of Dr. Chaudhary, who, during the year after the accident, documented ongoing pain linked to the accident and made several recommendations for physiotherapy interventions.
17On a balance of probabilities, I find that the applicant has established the reasonableness and necessity of the disputed physical therapy. The plan is payable with interest.
The applicant is not entitled to the disputed Chronic Pain Assessment
18Section 38(2) of the Schedule provides that an insurer is not required to pay an expense in respect of an assessment or examination that was incurred before the insured person submits a Treatment and Assessment Plan.
19The respondent submits that the applicant submitted the Treatment and Assessment Plan (OCF-18) proposing a Chronic Pain Assessment on April 2, 2018, 40 days after the assessment had taken place.
20The applicant has not made submissions or tendered evidence to show that any of the exceptions to the requirement to submit a treatment plan before incurring an expense [set out in s. 38(2)(a) through (d)] are engaged in these circumstances.
21Instead, he submits that the denial of the claimed assessment was baseless because the respondent relied on the opinion of an orthopedic surgeon, who is unqualified to opine on chronic pain, to deny the plan without that expert ever reviewing it. He submits the respondent gave no reason for the denial.
22I find that the respondent gave adequate reasons for the denial. An insurer is not required to seek an Insurer's Examination for every determination. Section 44 of the Schedule is clear that insurers may require an insured to be examined to assist in determining entitlement to a benefit. It was open to the respondent to rely on a prior Insurer's Examination in assessing entitlement to the disputed assessment.
23The applicant has tendered no evidence to support his submission that an orthopaedic surgeon is unqualified to opine on chronic pain. It was open to the respondent to rely on the clinical findings of an orthopaedic surgeon to assess the applicant's accident-related impairments.
24Ultimately, the applicant is not entitled to the Chronic Pain Assessment because he proceeded with the assessment before the OCF-18 was submitted to the respondent for consideration. He has not established any of the exceptions to this requirement as set out in s. 38(2). The assessment is therefore not payable.
CONCLUSION AND ORDER
25The respondent is not required to find the Treatment and Assessment Plan (OCF-18) for a Chronic Pain Assessment as the applicant incurred the cost of the assessment before submitting the plan to the respondent, contrary to s. 38(2) of the Schedule.
26The applicant has proven, on a balance of probabilities, that the disputed physical therapy is reasonable and necessary as a result of the accident. The respondent shall pay $3,108.32 plus interest calculated in accordance with s. 51 of the Schedule.
Released: April 19, 2022
Theresa McGee
Vice-Chair