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:
Rebecca Anderson
Applicant
and
The Co-Operators Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Gus Triantafillopoulos and Shannon Kelly, Counsel
For the Respondent:
Amanda Lennox, Counsel
Heard: By Videoconference on February 8, 9, and 10, 2021
OVERVIEW
1Rebecca Anderson, (“the Applicant”), was involved in an automobile accident on December 18, 2016, and sought benefits from The Co-Operators Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The Respondent refused to pay for certain benefits, and in response, the Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES
2The issues to be decided in the hearing are:
Are the Applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
Is the Applicant entitled to an income replacement benefits (“IRBs”) of $400.00 per week from March 16, 2018 to date and ongoing?
Is the Applicant entitled to attendant care benefits (“ACBs”) of $2,367.00 per month from September 25, 2018 to date and ongoing?
Is the Applicant entitled to $2,186.06 for physiotherapy, recommended by Physiotherapy on Wheels in a treatment plan (OCF-18) dated December 6, 2018?
Is the Applicant entitled to $2,656.02 for physiotherapy, recommended by Physiotherapy on Wheels in an OCF-18 dated May 17, 2018?
Is the Applicant entitled to $1,898.75 for occupational therapy, recommended by Innovative Case Management in an OCF-18 dated September 18, 2018?
Is the Applicant entitled to $5,259.09 for occupational therapy, recommended by Innovative Case Management in an OCF-18 dated October 2, 2018?
Is the Applicant entitled to $2,021.35 for psychological treatment, recommended by Synoptic Medical Assessments in an OCF-18 dated August 30, 2019?
Is the Applicant entitled to the assessments recommended by Synoptic Medical Assessments Inc. as follows:
(i) $2,486.00 for an orthopaedic assessment, in a treatment plan dated October 11, 2018; and
(ii) $2,486.00 for a psychiatric assessment, in a plan dated October 17, 2019?
- Is the Respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
3Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Respondent removed the Applicant from the MIG following the case conference. The issue is resolved. Likewise, the Respondent approved the psychological treatment plan dated August 30, 2019, resolving that issue as well.
5The Applicant is entitled to IRBs for the period from March 16, 2018 to-date and ongoing, the physiotherapy treatment plans dated May 17 and December 6, 2018, the psychological treatment plan dated August 30, 2019, and the psychiatric assessment plan dated October 17, 2019, plus applicable interest.
6The Applicant is not entitled to ACBs, the occupational therapy treatment plans dated September 18 and October 2, 2018, the orthopaedic assessment plan dated October 17, 2019, or an award.
THE ACCIDENT
7The Applicant was struck on her right knee by a vehicle while she was walking in a parking lot and carrying her infant son. She was taken by ambulance from the scene of the accident to the hospital where she was examined and was diagnosed with a soft tissue injury to her right knee and discharged to the care of her family physician. It was later determined that the Applicant sustained a sprain of her right medial collateral ligament (“MCL”), neck and back strains, and that she developed certain psychological injuries as a result of the accident.
BACKGROUND
8The Applicant has a significant medical history. At 9 years old, she broke her hip on the left side. Her care from that injury involved seven surgeries. Over time, she had a pin surgically inserted in one hip and a plate in the other. As a result, the Applicant endured lingering, yet occasional, hip pain. The Applicant testified that, pre-accident, she experienced hip pain about once or twice a year and was able to relieve it with over-the-counter pain medication and rest. She was 25 at the time of the accident and was employed in a cafeteria. Her work involved constant standing and walking.
9The Applicant was involved in a separate incident on November 15, 2016, about a month prior to the accident. The Applicant’s infant son pushed awkwardly on her legs, which lead to hip pain. She met with her family physician, Dr. A. Bennett, two days after the incident and complained of groin pain and developing pain while “walking/weight bearing.” Dr. Bennet examined the Applicant and noted that her knees were normal but her hip range of motion was limited. Dr. Bennett suspected that the Applicant may have had a hardware failure in her hip or osteoarthritis and referred her for x-rays and gave her prescription pain medication.
10The Applicant met with Dr. Bennet a week later and discussed the x-ray findings. The x-rays showed moderate to severe osteoarthritis in the left hip and mild in the right. The Applicant was referred to an orthopaedic surgeon and a clinic, possibly for a joint injection.
11The Applicant met with Dr. Lansang, orthopaedic surgeon, on December 9, 2016, nine days prior to the accident. Dr. Lansang performed an examination and noted that the Applicant developed early arthritis and referred her for cortisone injections and viscosupplementation and advised her to use a cane to offload her left hip if the pain is significant. Dr. Lansang also referred the Applicant to Dr. P. Kuzyk, orthopaedic surgeon, who specializes in hip disorders of the young, in order to explore alternatives or better bearing surfaces for her hip replacement, given her age. At the hearing, the Applicant testified that she believed that, at the time of this consultation with Dr. Lansang, hip replacement surgery was not imminent and that it was something to consider later on in life.
12The accident occurred about a week later, on December 18, 2016.
13The Applicant met with her family physician, Dr. A. Bennett, two days after the accident. She complained of worsening left hip pain as a result of putting more weight on it due to the right knee injury. She also complained of neck and back pain. Dr. Bennett examined the Applicant and noted her knee and hip pain.
14On December 23, 2016, the Applicant met with Dr. Chakravertty, orthopaedic surgeon, for a consultation regarding her knee. Dr. Chakravertty noted significant bruising on the medial side of the right knee, painful range of motion, but found her ligaments to be intact. She was initially diagnosed with a soft tissue injury to her knee and was referred to exercises. A follow-up visit occurred on January 20, 2017. There, the Applicant noted to be doing better but continued to have knee pain. Dr. Chakravertty suspected a mild MCL sprain and recommended physiotherapy.
15Later, on March 22, 2017, the Applicant met with Dr. Kuzyk. Dr. Kuzyk examined the Applicant, reviewed the x-rays from November 2016, and determined that she was a suitable candidate for a left total hip replacement.
16The Applicant met with Dr. Bennet again on May 8, 2017. Clinical notes from that visit recorded that the Applicant had ongoing knee pain and complained that her hip has been worse since the accident and that Dr. Bennet agreed with having a hip replacement. By the fall of 2017, the Applicant’s right knee was improving but she was still advised to continue with physiotherapy and massage therapy. She continued with treatment and managed her knee and hip pain with prescription medication.
17By April 6, 2018, despite being off work since August 2017, the Applicant reported worsening right knee pain. She reported ongoing knee pain to Dr. Bennet again in June 2018 and complained of knee swelling while walking in July 31, 2018.
18The Applicant’s hip replacement surgery occurred on August 31, 2018. No surgical complications were reported. Though her left hip issues mostly resolved following the surgery, her knee issues persisted.
19The Applicant also has history of some situational depression and experienced occasional panic attacks as an adolescent. She submits that she tried psychotropic medication after her relationship with the father of her son deteriorated but discontinued the medication after about a week and was able to address her symptoms without it. She submits that she was well at the time of the accident, but her psychological symptoms worsened following it and have developed into a somatic symptom disorder, with predominant pain, persistent, and an adjustment disorder, with mixed anxiety and depressed mood.
20The Applicant claims that together, her hip pain and surgical intervention, her right MCL sprain and ongoing knee pain, and her psychological symptoms prevent her form working and entitle her to IRBs from March 16, 2018 to-date and ongoing. She also claims entitlement to the disputed treatment and assessment plans as well as ACBs.
INCOME REPLACEMENT BENEFITS
21Pursuant to section 5(1)1 of the Schedule, IRBs are payable to insured persons who, within the first 104 weeks following the accident, are substantially unable to perform the essential tasks of their pre-accident employment as a result of an impairment. After the first 104 weeks, pursuant to section 6(1)(b), the test to qualify is more stringent. After 104 weeks, the test expands to whether the Applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
22At the time of the accident, the Applicant worked in a cafeteria of a large auto parts manufacturer. She served hot and cold food to employees at the plant. Most of her time at work was spent on her feet, either standing or walking with occasional periods of sitting for less than 30 minutes. She was mostly required to reach at or below shoulder level, but occasionally required to reach above her shoulder and do some bending. From a cognitive and social perspective, the Applicant was required to perform simple arithmetic while using a cash register, follow written and spoken instructions, occasionally work unsupervised, use moderate communication skills, and provide work direction to others.
23The Applicant’s work experience prior to her position at the time of the accident involved jobs which all required prolonged standing. Her experience is primarily in the fast-food industry, with some time spent working at a package distribution center.
24The Respondent, following a insurer’s examinations (“IEs”) by Dr. M. Martin, orthopaedic surgeon, and Dr. C. Bradbury, psychologist, determined that the Applicant was not substantially able to perform her essential tasks of employment. It stopped payment IRBs effective March 15, 2018.
25There are three components to the Applicant’s disability claim: the accelerated need for hip surgery, her chronic right knee pain, and her psychological injuries.
Did the accident cause or accelerate the Applicant’s hip surgery?
26Causation is established where the Applicant proves that, on a balance of probabilities, the accident caused her injuries. In these cases, the “but for” test is used to determine causation, whereby the Applicant is required to establish that her injuries would not have occurred but for the accident. However, she is not required to show that the accident was the sole cause of her injury. In certain situations where multiple independent causes may bring about a single harm, the Applicant must establish that there is a material contribution.[1]
27There are several causes to the Applicant’s hip disfunction and surgery. Aside from the subject accident, the Applicant was predisposed to developing osteoarthritis as a result of her hip surgeries as a child, had a leg length discrepancy of about 2.5 cm, was employed in a physically demanding job which required her to walk and stand regularly, and about one month before the accident she endured an incident with her son which increased her hip pain.
28The Applicant claims that her accident-related MCL sprain was a contributing cause of her left hip pain and disfunction and, as a result, caused or accelerated her timeline for hip-replacement surgery. The Respondent submits that the Applicant has failed to prove that the accident was a necessary cause of her surgery.
29I find that the accident was not the cause, nor did it accelerate the timeline for the Applicant’s hip surgery.
30I recognize that the MCL sprain caused the Applicant to be unable to use a cane to offload her left hip as instructed by Dr. Lansang. However, there is no evidence to show that this caused, or even accelerated, her timeline for hip surgery. Instead, the evidence shows that the Applicant’s timeline for hip replacement surgery proceeded as scheduled.
31The Applicant met with Dr. Bennett on December 13, 2016, 5 days prior to the accident, and discussed the Applicant’s consultation with Dr. Lansang. During that visit, Dr. Bennett noted that “[a]s it may be up to 2yrs before gets surgery and pt having severe pain, may need opioid treatment.” The Applicant’s hip replacement surgery occurred on August 31, 2018, less than two years following Dr. Bennett’s remark. Thus, there is no evidence of an acceleration of her surgical timeline.
32I agree with the Applicant’s submissions that Dr. Lansang’s CNRs make no mention of her surgery being inevitable. Though, I find that Dr. Bennett’s remarks outweigh the absence of evidence in Dr. Lansang’s CNRs. I also appreciate the testimony of Dr. Brown. Dr. Brown agreed that Dr. Lansang’s CNRs do not note that the Applicant’s hip surgery as inevitable but testified that a referral to a secondary specialist is indicative of an inevitable surgery. While I am not convinced one indicates the other such as Dr. Brown suggests, I agree that the referral holds some weight in determining that the Applicant’s hip surgery was a likely outcome regardless of the accident.
33Dr. Martin, an expert in orthopaedic surgery, assessed the Applicant, issued an insurer’s examination report, dated March 13, 2018, and testified at the hearing. Dr. Martin’s report noted that an examination revealed that the Applicant walks with a mild limp, has a left leg which is about 2 cm shorter than her right, and has right knee tenderness at the medial joint line with discomfort. In the report, Dr. Martin noted that the Applicant had a walking tolerance of 15 minutes and that she could not climb stairs in a reciprocal manner and that she required treatment for her hip issues, which are not related to the accident. No credibility issues were noted. Dr. Martin’s assessment found that the Applicant sustained a soft tissue injury to her right knee and that she may have strained her hip.
34During testimony, and in the report, Dr. Martin opined that the Applicant sustained no significant injury and that he felt that the Applicant’s pain was mostly related to her osteoarthritis in her hip. He also noted that the Applicant’s injuries were superimposed on end stage osteoarthritis of the left hip. Dr. Martin concluded that the worsening of the Applicant’s symptoms is more likely due to the worsening of her underlying hip disorder than from her accident related injuries. He felt that the Applicant’s hip disorder was not related to the accident, that surgery was inevitable, and that the accident had little impact on her surgical timeline.
35Further indication that the Applicant’s hip surgery was a likely outcome is the consultation notes of Dr. Kuzyk, orthopaedic surgeon. Dr. Kuzyk met with the Applicant on March 22, 2017 and examined her. Dr. Kuzyk noted that the Applicant was using prescription medication to manage her hip pain and examination found that the Applicant had a short leg gait, her left leg being 2-2.5 cm shorter than her right, and decreased range of motion throughout her hips. In a returning letter to Dr. Bennett, Dr. Kuzyk said “as Dr. Lansang anticipated, due to the extent of Ms. Anderson’s left hip degeneration, she is now a suitable candidate for a left total hip arthroplasty.”
36Finally, with respect to causation as it applies to the Applicant’s hip surgery, I find no comment from a physician drawing a clear connection to the accident and her surgery. While I note that the Applicant is not required to provide this evidence, the absence of it supports my findings above.
37Considering the above, I find that the Applicant’s hip surgery was not as a result of the accident, nor was it materially accelerated by the accident. I will now turn my attention to the Applicant’s other injuries.
Did the accident cause the Applicant’s chronic knee pain?
38The Applicant submits that the Respondent focused overwhelming on her pre-accident hip issues, causing it to have tunnel vision and overlook how her knee and psychological injuries preclude her from completing her essential work tasks. The Respondent submits that the Applicant’s ongoing knee issues are not from the accident but as a result of weakness and deconditioning or referred pain from the right hip.
39I find that the Applicant’s ongoing knee pain, characterized by Dr. Bennett, her family physician, as chronic knee pain, and by Dr. Brown as chronic pain syndrome, are as a result of the accident.
40It is uncontested that the Applicant sustained a right MCL sprain as a result of the accident. The MCL sprain was diagnosed by Dr. Chakravertty on January 20, 2017. I find that the MCL sprain is as a result of the accident because her knee complaints occurred after the accident and she had no knee issues preceding the accident. The Applicant reported to Dr. Bennett on November 22, 2017, following the incident with her son which caused hip pain pre-dating the accident, that she experienced no knee pain during the weeks prior. Dr. Bennett’s CNRs clearly show that the Applicant had pain in her right knee following the accident. There is no evidence of any other trauma which may have caused the Applicant’s ongoing knee pain.
41The Applicant treated the knee injury with physiotherapy and pain medication, and, at times, the pain improved, though it never subsided. Dr. Bennett’s CNRs document the Applicant’s recurring complaints of knee pain. In the early stage following the accident, she was able to endure the knee pain and return to work on modified duties. Her complaints of knee pain increased following her return to work. She managed to continue working until July 2017, when she took a stress leave from work for one week but returned. Following that break in work, the Applicant had an episode of back pain due to lifting. By August 28, 2017, Dr. Bennett recommended that the Applicant stop working until she recovers from her pending hip surgery. However, I acknowledge that Dr. Bennett’s recommendation to stop working, at this time, is not specific just to the Applicant’s knee injury.
42The Applicant experienced some improvement in her knee pain once she stopped working in 2017. A clinical note by Dr. Bennett, dated September 12, 2017, stated that the Applicant’s knee pain is improving and that she has been engaging in physiotherapy and massage for her hip and knee pain. Despite this reported improvement, Dr. Bennett supported the Applicant’s disability claim on account of her MCL sprain. Dr. Bennett completed a disability certificate dated October 10, 2017 which noted that the Applicant’s predominant accident-related injury was her right MCL strain, followed by left hip pain and anxiety. It was anticipated that the disability period would be more 12 weeks and extend until after the Applicant has hip surgery and recovers from same.
43The disability certificate by Dr. Bennett and the corresponding clinical notes and records hold considerable weight. I appreciate that other evidence shows that Dr. Bennett will not condone a course of action that she is unsupportive of. In early 2019, the Applicant sought to have her teeth cleaned at a dental office but required medical clearance due to her recent hip replacement surgery. Dr. Bennett refused to lend her support for the procedure because she was unsure if it was right for the Applicant and wanted to defer to her treating orthopaedic surgeon, Dr. Kuzyk.
44Dr. Martin testified that he felt that the Applicant’s knee sprain was not significant. As noted earlier, he found that her impairments were predominantly due to her ongoing hip disfunction. He did not assess the Applicant after her surgery but agreed that the synovitis in the Applicant’s knee has not fully resolved to-date.
45Indeed, as the Respondent submits, neither of the Applicant’s orthopaedic surgeons attributed her ongoing knee pain to the subject accident. The Applicant reported ongoing knee pain to Dr. Chakravertty on July 19, 2018. She was examined during that visit and Dr. Chakravertty felt that her ongoing knee pain was due to weakness and deconditioning and recommended an aggressive active physiotherapy program to work on strengthening. I am not convinced from Dr. Chakravertty’s note that the Applicant’s ongoing knee pain is due to hip-related deconditioning, as the Respondent suggests. Dr. Chakravertty does not attribute knee deconditioning to the Applicant’s hip disorder and also states that surgery will not help.
46During testimony, the Applicant said that her knee pain was much different than her arthritic hip pain. To her, it was a throbbing pain which was accompanied with swelling. She said that she felt dismissed by Dr. Chakravertty when it became known that she was involved in an accident claim dispute and that she was offended when Dr. Chakravertty said that her knee pain was due to deconditioning, or weight gain as she interpreted it. The Applicant testified that any deconditioning was due to her knee pain preventing her from exercising.
47The Applicant’s ongoing knee pain continued following her assessment with Dr. Chakravertty. She met with Dr. Lansang again on September 26, 2018 and was assessed. Dr. Lansang found good range of motion but significant patelloformal crepitus and a strongly positive patellar grind. Aware of her history of hip disorder, Dr. Lansang concluded that her ongoing knee pain is likely referral pain from her hip. The problems persisted to the point that she received cortisone injections in her knee in late 2019 and Dr. Lansang referred her for an MRI on January 22, 2020. Dr. Lansang thought the MRI results were good despite evidence of a small Baker’s cyst. Dr. Lansang recommended topical anti-inflammatory cream and physiotherapy to address the Applicant’s ongoing knee pain.
48According to the Applicant, her hip pain gradually reduced following the surgery. To me, this partly conflicts with Dr. Lansang’s opinion that the Applicant’s knee pain is referral pain from her hip. Dr. Lansang does not address why the Applicant’s knee pain increased at a time when her hip pain was decreasing. Instead, her right knee pain persisted and later increased during and following her recovery from hip surgery.
49As noted earlier, Dr. Bennet believed her primary injury was that of an MCL strain and that she was unable to work as a result of it. I have reviewed the entirety of Dr. Bennett’s CNRs and find nothing which substantially digresses from that opinion.
50The Applicant met with Dr. S. Brown, an expert in chronic pain, who produced a report dated November 30, 2020. The report documents a thorough review of the Applicant’s medical record and included a video consultation. Dr. Brown noted that the Applicant’s main complaint is right knee pain with occasional swelling which is worse after prolonged walking or standing. This is consistent with her complaints to Drs. Bennett, Lansang, and Chakravertty. Dr. Brown diagnosed the Applicant with chronic pain syndrome, chronic right knee pain, and noted psychological symptomology, all attributed to the subject accident. The report concluded that the Applicant’s impairments affect her ability to perform the essential physical and cognitive tasks as a cafeteria worker and that she suffers a complete inability to return to any employment for which she is reasonably suited by education, training, and experience.
51During testimony, Dr. Brown spoke about the ongoing presence of fluid in the Applicant’s knee. It was noted that fluid was present in post-accident imaging and that, according to Dr. Brown, was evidence of an ongoing ligament or cartilage strain. Dr. Brown also noted that there is no evidence that the Baker’s cyst is from the accident but said that it can be related to the increase in fluid in the knee.
52Dr. Brown recognizes that there may be contributing factors for the ongoing impairment in the Applicant’s right knee that are not accident related. However, Dr. Brown said that these factors, such as the referral hip pain described by Dr. Lansang, are factors that contributed to the delay in her recovery and her final presentation of chronic pain syndrome. From Dr. Brown’s testimony, I conclude that the Applicant’s referral pain from the hip contributed to the prolongation of her recovery. Yet, the referral pain, as well as the hip disorder, are not the cause of her ongoing knee pain and impairment. Rather, I find that it was the subject accident which caused the initial MCL injury, which was the genesis of her chronic knee pain, which continues to impair her to-date.
53The above analysis leads me to conclude that the Applicant meets the test to qualify for IRBs pursuant to sections 5(1)1 and 6(1)(b) of the Schedule. The Applicant’s MCL sprain and chronic right knee pain, intermittent swelling, and the resulting impairment directly caused the Applicant’s inability to return to any employment for which she is reasonably suited by education, training, and experience. She had a pre-existing hip disorder which required surgical intervention but, was nevertheless functional at the time of the accident. Her hip was repaired, yet her right knee issues persisted. To me, the Applicant has shown an ability to work through aches and pains in her hips and would likely have returned to work following her hip surgery and recovery but for her right knee issues. I find that the Applicant, would not suffer her current level of impairment but for the accident, her MCL sprain, and ongoing chronic pain and swelling.
Do psychological injuries prevent the Applicant from working?
54In addition to her chronic hip and knee pain, the Applicant also claims that her psychological impairments prevent her from completing the essential tasks of her employment or any employment for which she is reasonably suited by education, training, and experience. The Respondent submits that the Applicant has not established that her psychological impairments are a necessary cause of her substantial inability to complete her work tasks. It further suggests that her life-stressors, unrelated to the accident, are the predominant cause of any psychological symptoms that the Applicant experiences.
55A comprehensive analysis of the Applicant’s psychological injuries, and the impact on her ability to complete her essential work tasks is unnecessary in light of my finding regarding the Applicant’s chronic right knee pain. I do not need to determine whether the Applicant’s psychological injuries are a cause of her inability to work. However, I am compelled by the evidence and find that the Applicant’s somatic symptom disorder and adjustment disorder with mixed anxiety and depressed mood contributes to her inability to work.
56The psychiatric assessment report by Dr. S. V. Patel, dated December 16, 2019 concluded that the Applicant’s psychiatric disorders and related impairments constitute a complete inability to engage in any employment for which she is reasonably suited by education, training, and experience. The assessment included a clinical interview and psychiatric testing, which found moderate levels of depression and no gross evidence of malingering. It also noted that the Applicant lacks the mental function to show up and remain at work and participate in a sustainable manner, and that she is at risk of periods of medical leave due to her moderate stress tolerance. Dr. Patel acknowledged the Applicant’s history of situational psychiatric difficulties but noted that she was stable and functioning at the time of the accident and that her past psychiatric difficulties may have made her more vulnerable with respect to future stress and traumas. Dr. Patel felt that the Applicant’s current psychiatric impairments would not be present but for the accident.
57The psychological IE reports of Dr. Bradbury, dated March 13, 2018 and Dr. J. Bacchiochi, dated November 19, 2019, also find that the Applicant suffers from an adjustment disorder with mixed anxiety and depressed mood. Both assessors felt that the Applicant required additional psychological treatment as a result of her accident-related injuries. However, Dr. Bradbury felt that the Applicant’s psychological symptoms did not prevent her from performing her essential tasks of employment. Dr. Bacchiochi did not opine on whether the Applicant’s psychological or psychiatric symptoms prevent her from working.
58As noted early, the Applicant’s chronic knee pain is the primary injury which prevents her from completing the essential tasks of her employment. However, as noted by Dr. Patel, Dr. Bradbury, and Dr. Bacchiochi, the Applicant sustained an adjustment disorder with mixed anxiety and depressed mood as a result of the accident. While I am not convinced that the Applicant’s accident-related psychological injuries are the sole or primary cause of her inability to work, I appreciate that the injuries contribute to her disability.
Period of Disability
59Considering the evidence and submissions, I find that the Applicant’s accident-related disability period begins on October 10, 2017, the date of the disability certificate completed by Dr. Bennet. Therefore, I find that she is entitled to IRBs for the period claimed, being March 16, 2018 to-date and ongoing.
60As noted earlier and for simplicity, I accept Dr. Bennett’s disability certificate as the beginning of her accident-related disability. Considering the Applicant’s ongoing complaints to her family physician, the referrals to various specialists such as Dr. Chakravertty and Dr. Lansang, and Dr. Brown’s report and testimony, I find that her disability continues from that period and ongoing. As I explained earlier, I am not persuaded by the reports which find that the Applicant’s disability is primarily due to her hip disfunction, such as Dr. Martin’s.
61I acknowledge that the Applicant was rendered disabled by her hip surgery, but that does not mean that she was no longer disabled by her chronic knee pain. The Applicant’s knee pain and related disability continued following hip surgery and during her recovery from it. Therefore, despite being disabled due to hip surgery, the Applicant is permanently disabled due to her MCL sprain and is entitled to IRBs for the period following surgery and during her recovery.
ATTENDANT CARE BENEFITS (“ACBs”)
62The Applicant claims entitlement to ACBs for the period from October 11, 2018 to-date and ongoing because the Respondent failed to properly comply with its obligations outlined in section 32 of the Schedule. She submits that the Respondent never advised her of her potential entitlement to ACBs, nor did it give her the requisite forms to make a claim for ACBs. She further submits that the Respondent also failed to comply with section 42 of the Schedule when it refused payment of ACBs without conducting an IE to produce its own assessment of attendant care needs (“Form 1”). Lastly, she submits that, pursuant to section 44(9) of the schedule, the Respondent is obligated to attain a Form 1 of its own in order to properly deny the Applicant’s ongoing entitlement to ACBs. She submits that she incurred ACBs for the period from October 4, 2018 to November 29, 2018 but stopped incurring the costs due to a lack of funding and financial hardship. She submits that ACBs beyond this period should be deemed incurred because they were not incurred only because the Applicant lacked the means to pay for it out-of-pocket.
63The Respondent submits that the accident is not a necessary cause of the Applicant’s need for ACBs. It submits that the Applicant was independent with her personal care tasks immediately following the accident and thereafter and that her hip surgery is what created her need for ACBs. It further submits that it complied with section 32 of the Schedule on January 5, 2017, when it sent the Applicant her accident benefit package with an explanation of the benefits available to her and further submits that a failure to comply with section 32 does not entitle the Applicant to ACBs. Lastly, it submits that section 42 of the Schedule includes no mandatory language that compels the Respondent to conduct an IE and that its denial of ACBs was reasonable and based on the medical records available to it.
64Relevant to this matter, section 32(2) of the Schedule stipulates that the Respondent must promptly provide the Applicant with the requisite forms, a written explanation of benefits available to her, information to assist her with her claim, and information on the election of certain benefits, such as ACBs. Yet, the Schedule provides no consequence for an insurer’s failure to comply with section 32(2).
65There is no evidence that suggests that the Respondent gave the Applicant the requisite forms when it removed her from the MIG, but this has no consequence. The Respondent, upon removing the Applicant from the MIG, ought to have advised her that she may be entitled to ACBs as a result of the accident, and it was incumbent on the Respondent to provide the Applicant with a Form 1 to have completed by a qualified healthcare practitioner. Indeed, the Schedule provides no consequence for the Respondent’s failure to comply with this section. Any consequences would be included in this section of the Schedule, had that been the intention of the legislation.
66It is uncontested that the Applicant submitted a treatment plan dated September 18, 2018, seeking funding for an in-home occupational therapy assessment. The purpose of the assessment is to address whether the Applicant required ACBs and, if so, the amount of ACBs required per month. She also submitted a Form 1, dated September 25, 2018, recommending ACBs in the amount of $2,367.00 per month. The Respondent replied on October 11, 2018, advising that it would not pay for the assessment and ACBs, primarily because it believed that any need for ACBs was as a result of the Applicant’s hip surgery, which occurred on August 31, 2018.
67The process for submitting and responding to the treatment and assessment plan for the in-home assessment is governed under section 38 of the Schedule. The Applicant made no submissions indicating that the Respondent is not compliant with section 38. Thus, I see no need to analyze whether the Applicant is entitled to payment for the assessment due to a breach of the procedural requirements in section 38 of the Schedule.
68The Form 1 dated September 25, 2018 triggers an application for ACBs. Section 42(3) of the Schedule provides that the Respondent must advise the Applicant of the expenses it agrees to pay for and those that it does not. Section 42(4) provides that the Respondent may require an IE under section 44 of the Schedule if it has not agreed to pay for all expenses described in the Form 1. Considering that section 42(4) states that the Respondent “may” conduct an IE, I find no obligation for it to conduct an IE to produce its own Form 1. If the intention of the legislation was to oblige insurers to complete a Form 1 of their own, the legislation would reflect that. Instead, it states that the Respondent “may” conduct an IE.
69Contrary to the Applicant’s submissions, the language in sections 14 and 38 of the Schedule do not indicate that the Respondent is only permitted to deny ACBs without completing a Form 1 if the Applicant is subject to the MIG. Section 14 states that the Respondent is liable to pay certain benefits to or on behalf of an insured person who sustains an impairment as a result of an accident. Section 14(2) provides that, if the Applicant’s impairment is not a minor injury, the Respondent is obliged to pay ACBs under section 19 of the Schedule.
70The Applicant’s impairment which caused her need for ACBs, is from her hip surgery and not her accident-related injuries. Therefore, any ACB need stemming form that surgery is not accident related. Further, the payment of ACBs is dependent on the expenses being reasonable and necessary. Here, the payment of any ACB expenses is not reasonable and necessary because the Applicant’s need for ACBs is related to her hip surgery and not as a result of the subject accident.
Physiotherapy treatment plan dated May 17, 2018 and December 6, 2018
71I find that the physiotherapy treatment plans dated May 17, and December 6, 2017 are reasonable and necessary. The treatment plans propose physiotherapy and massage therapy to reduce the Applicant’s pain and increase her strength and range of motion as well as return her to her activities of normal living and her pre-accident employment.
72The CNRs of Dr. Bennett, the Applicant’s family physician, are compelling evidence in favour of these treatment plans. The CNRs include notes that her knee pain was worsening around April 2018 and that her complaints continued thereafter. For example, a clinical entry dated November 5, 2018 notes that the Applicant’s ability to exercise is limited by her hip and knee pain. Dr. Bennett recommended continuing with physiotherapy in September 2017. In addition, Dr. Chakravertty recommended an aggressive physiotherapy for the Applicant’s right knee around July 2018. Though, I acknowledge Dr. Chakravertty’s skepticism with respect to causation, as discussed earlier.
73Dr. Brown recommends a blended approach to the Applicant’s chronic knee pain, which includes physiotherapy. In his report dated November 30, 2020, which is consistent with his testimony, he recommends ongoing physiotherapy and guided exercise, as well as cognitive behavioural therapy provided through a multidisciplinary chronic pain program would be beneficial.
74I am not persuaded by Dr. Martin’s opinion, that ongoing, facility-based, physiotherapy would not be beneficial to the Applicant. Dr. Martin testified that it would not be reasonable and necessary for the Applicant to continue physiotherapy given she has experienced little benefit from it. He also testified that, in essence, there is never a need for anyone to participate in facility-based physiotherapy and that the Applicant can simply do exercises at home. To me, this is uncompelling because the Applicant reported an improvement in her knee pain in September 2017 as a result of ongoing facility-based physiotherapy and massage therapy. In addition, it appears to me that Dr. Martin failed to appreciate the Applicant’s recovery as it relates to her specifically, and the recommendations from her family physician and specialists. Dr. Bennett and the other specialists may have disagreed on the cause of the Applicant’s impairment but, they agreed that physiotherapy would be helpful.
75For the reasons above, I find that the disputed physiotherapy treatment plans are reasonable and necessary. The Applicant is entitled to payment for these treatment plans if she has incurred them and they have been properly invoiced. If she has not incurred the goods and services, she may now do so, and the Respondent is liable to pay for same once properly invoiced.
Occupational Therapy Treatment Plans dated September 25 and October 2, 2018
76I find that the Applicant is not entitled to the cost of the in-home assessment plan dated September 25, 2018 and the occupational therapy treatment plan dated October 2, 2018 because the plans propose goods and services are not reasonable and necessary as a result of the Applicant’s accident related injuries.
77The in-home assessment was proposed and conducted during the Applicant’s recovery from hip replacement surgery. As I noted previously, the Applicant’s hip surgery was not as a result of the accident. Therefore, it is not the Respondent’s responsibility to assess her needs following surgery because the change of circumstance is unrelated to the accident. This applies to both of the occupational therapy treatment and assessment plans because they both relate to claims stemming from the Applicant’s hip surgery and subsequent recovery.
78I find no statutory entitlement to the in-home assessment. The Applicant claims entitlement to payment for this assessment because the Respondent failed to reply to her within the requisite 10 business days. However, the Applicant incurred the cost of the assessment after it was submitted but before the expiration of 10 business days. Pursuant to section 38(11)(2), the Respondent is liable to pay for a medical benefit that relates to the period starting on the 11th busines day and ending on the day a proper notice is given. As a result, the Respondent is not required to pay for the cost of the in-home assessment because it was incurred prior to the 11th business day after being submitted.
79I understand that the Applicant felt an urgent need to assess her attendant care needs following her hip surgery. However, even if her hip surgery was due to the accident, which it was not, I see no authority which would permit the Applicant to incur an assessment prior to the 11th business day and still be entitled to payment for it. To me, this is contrary to the spirit of section 38 of the Schedule, which permits reasonable timeframes for the parties to communicate with one another.
80Similarly, there is no evidence showing that the October 2, 2018 occupational therapy plan was incurred on or after the 11th business day following submission. If anything, the evidence shows that the Applicant incurred certain aides or devices proposed in that plan, on or around October 4, 2018. As a result, and from a statutory perspective, the Applicant is not entitled to the goods and services proposed in the occupational therapy plan.
Psychological Treatment Plan dated August 30, 2019
81The Respondent agreed to pay for this treatment and assessment plan. The Applicant is entitled to payment for the incurred goods and services relating to this treatment plan. If she has not done so already, she may incur the goods and services and the Respondent is liable to pay for them once incurred and properly invoiced. Depending on whether the treatment has been incurred, interest may be payable pursuant to section 51 of the Schedule.
Orthopaedic Assessment Plan dated October 11, 2018
82I find that the orthopaedic assessment plan is not reasonable and necessary as a result of the accident. To me, this is a duplication of services which is not necessary.
83I am not convinced that seeking a causation opinion, such as the Applicant submits, is a reasonable and necessary expense. As discussed in detail previously, the subject accident is not a cause of the Applicant’s hip surgery, nor did it accelerate her surgical timeline. Instead, I agree with the Respondent that the Applicant had OHIP-funded orthopedic assessments with Drs. Kuzyk, Lansing, and Chakravertty in September and July 2018. Funding a fourth orthopaedic assessments is unnecessary.
Psychiatric Assessment Plan dated October 17, 2019
84I find that the psychiatric assessment plan is reasonable and necessary as a result of the accident. There is sufficient evidence to show that the Applicant suffers from ongoing psychological disorders and it is reasonable and necessary to assess her to determine the appropriate treatment for her.
85The CNRs from Dr. Bennett show that the Applicant had a depressed mood in March 2019, once funding for her counselling was exhausted, and that she discussed a goal of returning to work. Later, in May 2019, the Applicant exhibited symptoms of anxiety because she was not working or earning an income. Similar complaints, plus the addition of familial stressors continued to hamper the Applicant through 2019. It would be reasonable to assess the extent of these psychological or psychiatric issues, whether they are as a result of the accident, and whether they require treatment.
86The benefit of hindsight also confirms that the assessment is reasonable and necessary. Both Dr. Bacchiochi and Dr. Patel, in reports dated November 19, 2019 and December 16, 2019, concluded that the Applicant suffers from an adjustment disorder with mixed anxiety and depressed mood. Psychological treatment was recommended as a result. Considering the evidence, I find the psychiatric assessment plan to be reasonable and necessary as a result of the accident. The Applicant incurred the cost of this assessment; therefore, the Respondent is liable to pay for it once properly invoiced.
AWARD
87The Applicant may be entitled to an award pursuant to section 10 of Regulation 664 if I determine that the Respondent unreasonably withheld or delayed the payment of benefits. The amount of the award may be up to 50% of the total benefits payable, plus interest.
88The Applicant submits that the Respondent failed to see her hip surgery as an accident-related injury, resulting in the unreasonable denial of her benefits. As demonstrated above, I disagree with her position on her hip surgery. As a result, I find that the Respondent’s decision to follow the opinion of Dr. Martin and deny certain benefits due to the Applicant’s hip surgery is not unreasonable.
89The Applicant also suggests that the Respondent addressed ACBs in an unreasonable manner, which forced her to rely on her parents and boyfriend for help, straining those familial relationships. Yet, her claim for ACBs stems from her hip surgery and, as a result, is not a reasonable and necessary expense. Thus, the Respondent’s decision on this issue is reasonable. It’s failure to explain the Applicant’s potential entitlement to ACBs, once it removed her form the MIG, does not rise to the level that an award is warranted, particularly considering the Applicant’s independence prior to her surgery.
90The Respondent is not obliged to seek further opinions following the receipt of additional information. According to the Applicant, the Respondent’s failure to seek further opinions following the receipt of reports documenting chronic pain syndrome, psychological impairments, and patellofemoral syndrome, warrants an award. She suggests that this inaction was to the benefit of the Respondent, permitting it to rely on Dr. Martin’s favourable opinion. However, she directs me to no evidence of any such conspiring either in the adjuster’s log notes or testimony. Rather, I see that the Respondent sought addendums from Dr. Martin and Dr. Bradbury and conducted a psychological IE when it received a new request for a psychiatric assessment. While another opinion from a chronic pain specialist would likely have been helpful, it remains reasonable to rely on Dr. Martin’s opinion, particularly considering that the Applicant had already engaged in the dispute resolution process with the Tribunal. The Respondent is obliged to continuously adjust the Applicant’s claim in good faith which may or may not require further opinions.
91Ultimately, the Applicant has a complex situation with respect to the combination of her pre-accident hip issues and her MCL sprain and other accident related injuries. As a result, the Respondent’s adjusting of the Applicant’s claim was imperfect. However, I find that the Respondent’s actions do not rise to the level to warrant an award because it was not unreasonable.
CONCLUSION
92The Applicant was involved in an accident in a parking lot whereby she was struck by a vehicle on the right knee. She sustained a sprained right MCL, neck and back strains, and developed a somatic symptom disorder and an adjustment disorder with depressed mood. The Applicant was vulnerable at the time of the accident. She had ongoing and pre-existing hip disfunction which, from my perspective, was likely to require hip replacement surgery regardless of the subject accident. The Applicant had a total left hip replacement surgery, yet her knee pain and swelling related to the MCL sprain continued. To-date, her knee issues continue, and she remains unable to work. Further compounding the issue is that the Applicant has limited education and work experience outside of physically demanding jobs which require her to regularly stand or walk.
93Considering her injuries and inadequate recovery, I find that the Applicant is unable to work in any suitable employment based on her experience, education, and training. As a result, I find that she is entitled to IRBs for the period from March 16, 2018 to-date and ongoing.
94The physiotherapy treatment plans dated May 17, 2018 and December 6, 2018, and the psychiatric assessment plan dated October 17, 2019 are all reasonable and necessary as a result of the accident. The psychological treatment plan dated August 30, 2019 was approved by the Respondent and is not in dispute.
95The Applicant’s need for attendant care stems directly from her hip surgery, which is not accident related. Thus, she is not entitled to ACBs. Likewise, the occupational therapy treatment plans dated September 25 and October 2, 2018 are related to the Applicant’s hip surgery. Thus, she is not entitled to these two treatment and assessment plans. Similarly, the orthopaedic assessment plan dated October 11, 2018 is not reasonable and necessary as a result of the accident. She is not entitled to an award because no benefits were unreasonably withheld or delayed.
96The Applicant is entitled to the medical benefits determined to be reasonable and necessary as a result of the accident. If she has incurred the goods and services in those treatment plans, she is entitled to payment for them once properly invoiced. If she has not incurred them, the Applicant is entitled to do so and the Respondent is liable to pay for same once invoiced. Interest is payable on the overdue payment of benefits pursuant to section 51 of the Schedule.
Released: January 28, 2022
__________________________
Brian Norris
Adjudicator
Footnotes
- See: Sabadash v. State Farm, et al., 2019 ONSC 1121, Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, Monks v. ING Insurance Company of Canada, 2008 ONCA 269, and Walker Estate v York Finch General Hospital, 2001 SCC 23, [2001] 1 SCR 647.