Citation: Stone v. Economical Insurance Company, 2022 ONLAT 20-006642/AABS

Licence Appeal Tribunal File Number: 20-006642/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:

Royan Stone

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

David Carranza, Paralegal

For the Respondent:

Jason Frost, Counsel

HEARD:

By way of written submissions.

BACKGROUND

1The applicant was involved in an automobile accident on June 3, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule (“Schedule”) effective September 1, 2010 (including amendments effective June 1, 2016).¹ The applicant was denied certain benefits by the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided are:

i. Is the applicant entitled to a medical benefit in the amount of $4,186.07 for chiropractic services and goods of a medical nature, recommended by Dr. Gersheiga Thirunavukkarasu of Physio Fix and Fitness in a treatment plan, submitted on November 13, 2019?

ii. Is the applicant entitled to a cost of examination in the amount of $2,573.00 for a physiatry assessment recommended by Dr. Yen-Fu Chen of Excel Medical Diagnostics, dated and submitted on February 20, 2020?

iii. Is the applicant entitled to interest on any overdue payment of benefits per Section 51 of the Schedule?

PARTIES’ POSITIONS

Applicant

3On the issue of the denied medical benefit, the applicant submits the respondent should approve the disputed treatment plan because it agreed in April 2021 that his injuries no longer fell within the limits of the Minor Injury Guideline (“MIG”). The applicant explains the disputed treatment plan was earlier denied only because of the MIG limits, and that this reason is no longer relevant. The applicant further points out the respondent retroactively approved the denied part of an October 2018 treatment plan when he was removed from the MIG, and therefore believes the disputed treatment plan should too be approved.

4The applicant also maintains the respondent gave improper reasons for denying the disputed treatment plan. He believes this plan is reasonable and necessary because the treatment allowed him to function at a certain level and perform activities of daily living and employment duties as tolerated.

5The applicant’s position on payment for the physiatry assessment, is that it was reasonable and necessary to afford an opportunity for thorough examination; to receive a diagnosis and prognosis for his condition; and to obtain recommendations to improve his condition.

Respondent

6The respondent submits that neither the proposed treatment plan, nor the physiatry assessment, are reasonable or necessary because the applicant does not suffer from an impairment of physiological function. The respondent maintains the applicant was removed from the MIG for psychological reasons, and not for physiological reasons. The respondent also takes issue with several services and goods in the disputed plan, on the basis they are excessive.

7As well, the respondent maintains that its notice of denial was proper.

8Pertaining specifically to the reasonableness and necessity of the physiatry examination, the respondent raises the issue of causation in the context of a workplace accident that later occurred, and submits it is not liable to pay benefits resulting from an impairment caused by an intervening event.

RESULT

9I find the applicant is entitled to both benefits and interest..

ANALYSIS

Medical benefit in the amount of $4,186.07 for chiropractic services

Retroactive approval based on removal from the MIG

10The applicant submits the disputed treatment plan should be retroactively approved because it was initially denied for exceeding the MIG limit, which no longer applies to his claim. The respondent did not specifically address this aspect of the applicant’s position in its submission.

11The evidence shows the applicant was indeed removed from the MIG by the respondent in April 2021.² The removal letter approved a psychological assessment for $2,200.00. It also explained that, after reviewing updated medical documents, a decision had been taken to treat the applicant’s injuries outside the MIG. This letter does not say further treatment would be constrained only to psychological injuries and impairments. In fact, the partially approved October 2018 treatment plan³—the balance of which the applicant reports as approved after the April 2021 MIG decision—was focused only on the applicant’s physiological injuries and impairments, and largely consisted of chiropractic and massage sessions to mobilize, manipulate, and stimulate soft tissue.

12Notwithstanding, I do not find the applicant’s argument to be persuasive or relevant. Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—and insured person who sustains an impairment resulting from an accident. Section 15 (1) of the Schedule further explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident.

13As such, retroactively approving the denied part of a treatment plan—based on removal from the MIG—does not, in and of itself, obligate the respondent to approve all other treatment plans denied for the same reason. Each treatment plan put before an insurer is independently assessed as to its reasonableness and necessity.

14I therefore decline to find the applicant entitled to the disputed treatment plan based on his removal from the MIG.

Improper reasons for denial

15The applicant maintains the respondent’s November 2019 denial notice was deficient because it was incomplete and lacked particulars of the medical reasons for its denial.⁴ Specifically, the applicant submits the notice does not say the insurer reviewed the medical documentation in its possession, nor does it indicate this information was examined in relation to whether it was a minor injury in order to reach its conclusion.⁵

16The respondent submits the disputed denial notice “clearly and unequivocally⁶” said the medical documentation had been reviewed, which yielded a conclusion that the Applicant’s injuries were predominantly minor in nature and could be treated within the MIG. In addition, the respondent argues the Schedule and corresponding case law does not require a comprehensive analysis of all file information be performed to satisfy compliance.

17In fact, Section 38 (8) of the Schedule compels the insurer to provide the insured person with the medical reasons—and all the other reasons—as to why it considers a treatment plan for medical goods, services, assessments, and examinations to not be reasonable and necessary. Section 38 (11) of the Schedule further provides that insurers not doing so are liable to pay those costs within a prescribed period.

18The disputed denial notice⁷ does indeed say the treatment plan at issue—and at least nine other medical documents⁸—were reviewed, and that the information in these documents was compared to the MIG definition in the Schedule as part of its assessment. And curiously, the applicant’s submission acknowledges this, noting the respondent “reviewed the medical documentation and other information they had on file, and compared it to the definition of minor injury… within the (MIG).”⁹ Therefore, I find no merit to the applicant’s seemingly self-contradictory perspective on this aspect of the completeness of the respondent’s denial notice.

19I am, however, persuaded the medical reasons given for the denial in November 2019 are inadequate. The disputed notice explains only “it is our current position that your injuries are predominantly minor in nature and can be treated within the (MIG).” The respondent adds “…there is insufficient medical documentation to support that the injuries you have sustained fall outside of the minor injury definition …”.

20I find the respondent’s notice does not supply a clear medical reason for denial because there is no mention of what injuries the respondent contemplated in arriving at its decision. The explanation provided by the respondent could generically apply to many other MIG-related denials and provides little-to-no insight into the specific medical reasons for this particular denial. I also find there is no rationale provided for why the medical documentation is considered insufficient, nor are details provided as to what documentation or information may therefore be missing that resulted in the denial. That the respondent included a request to undergo a s. 44 insurer’s examination¹⁰ (“IE”)—presumably to obtain missing documentation or information—is a good thing, but does not mitigate the deficiency of this notice in supplying a clear medical reason for denying the applicant’s claim at that point in time.

21In fact, it is not until January 15, 2020, that the respondent supplies a compliant denial notice.¹¹ In that notice, the respondent explains the IE medical assessor—Dr. Farooq Ismail, physiatrist—believed the disputed treatment plan was not reasonable or necessary because his examination, conducted on December 19, 2019, did not find an ongoing accident-related musculoskeletal or neurological impairment resulting from the soft tissue injuries sustained in the accident.

22As such, I am persuaded to find the applicant entitled to the disputed treatment within the parameters of Section 38 (11) of the Schedule.

Excessive goods and services

23The respondent raised specific concerns about the sort of chiropractic sessions proposed, the cost of laser therapy sessions, the qualifications of the massage therapist, and the cost of a cervical pillow and heat pad. The applicant did not directly address these concerns in its submissions.

24The respondent submits the chiropractic rehabilitation is excessive because it’s noted only as “sessions” in the disputed treatment plan, and that this is unclear.¹² However, I’m not persuaded that an unclear description of a service on a treatment plan, in and of itself, makes it excessive per se. Further, chiropractic treatment is relevant to the types of soft-tissue injuries caused by the accident.

25I am also not persuaded the laser therapy costs in the disputed plan are excessive when compared to the Ontario Chiropractic Association’s (the “OCA”) fee schedule.¹³ The plan contemplates all 16 sessions billed at the rate of $50.00 per hour.¹⁴ But the $35.00 session made out in the respondent’s evidence applies only to second or later interventions during the same visit or session. As such, the $50.00 proposed for each next visit—according to the OCA fee schedule—indicates only that each session was a stand-alone treatment and was not provided in conjunction with other therapeutic interventions during the same visit.

26The respondent maintains in its submission that Ms. V. Thakkar was not licensed to practice massage therapy until March 20, 2020, and was therefore unqualified to provide this service as listed in the disputed treatment plan.¹⁵ However, the disputed treatment plan does not indicate Ms. Thakkar would provide massage therapy to the applicant; instead, it indicates she would provide 16 exercise and instruction sessions, as well as education.¹⁶ Further, Ms. Thakkar’s role as an assistant therapist (“AT”) is unregulated¹⁷ and therefore does not require a licence to be qualified to provide the services specified in the treatment plan. As such, the respondent’s concern about Ms. Thakkar qualifications has no merit.

27The treatment plan includes $200.00 for an electrical heating pad and $90.00 for a cervical pillow.¹⁸ The Cost of Goods Guideline (the “Guideline”)¹⁹ notes the maximum expense payable by an insurer for an item of goods is the retail price, or the price actually paid, whichever is lower. The Guideline places the onus on the insurer to supply reasonable evidence of an item’s retail price when a dispute arises. Reasonable evidence, as defined by the Guideline, “includes but is not limited to: an advertisement …”.

28The respondent produced advertisements²⁰ of retail prices for the disputed items in its submission. Those prices ranged between $29.97 and $39.97 for heating pads and between $40.99 and $65.99 for cervical pillows. As such, I am persuaded the costs in the disputed treatment plan for specific listed good are excessive and accept the respondent’s evidence as the maximum price payable by the respondent for a heating pad ($39.97) and cervical pillow ($65.99).

29In short, I find the applicant is entitled to all the goods and services disputed as excessive by the respondent²¹, albeit at the adjusted price for the heating pad and cervical pillow.

Examination costs in the amount of $2,573.00 for a physiatry assessment

Causation

30The applicable test in making a causation determination is the “but for” test: whether the applicant would have had his neck, shoulder, and lower back strain but for the accident.²² The accident is not required to have been “the cause.” That is to say, the accident need not be the sole cause or have been sufficient on its own to have caused the impairments at issue. Rather, the accident need only to have been a necessary cause.²³

31The respondent relies on a June 2018 Workplace Safety & Insurance Board (“WSIB”) Health Professional’s Report (“Form 8”), as well as a hotel ability form (“HAF”),²⁴ to show the applicant returned to work shortly after the accident and then suffered a workplace injury to this lower back.

32The legible portions of the Form 8 completed by the applicant’s family physician, Dr. F.C. Francisco, do indeed show the applicant—while working as a bellman—sprained/strained his lower back while lifting baggage at work on June 20, 2018. This is 17 days after the accident. The Form 8 says the applicant could resume work on August 15, 2018, and that the work was required to be modified for restrictions in bending, twisting, and lifting for a period of eight to 14 days.

33It is unclear as to when Dr. Francisco completed the HAF because the date fields are illegible. The legible portions of this form note the applicant suffered a lower back strain and could return to work with restrictions lasting 15-21 days. He was noted as capable of walking and standing as tolerated with no restrictions on sitting; lifting was restricted to up to 10 kilograms.

34I am not persuaded the applicant’s workplace injury has any substantive bearing on the physiatry examination issue. The respondent’s submission mentions the Form 8 and HAF evidence to show only that the applicant’s self-reports of his return-to-work dates—both in his submission to the Tribunal and during his physiatry IE—were inaccurate. There is no medical analysis in evidence to support the respondent’s position that the applicant’s impairments were caused by an intervening event. Indeed, the respondent acknowledges that Dr. Francisco did not mention the workplace injury in his med-legal consultation report, and that most assessors do not appear to have been aware of the later WSIB injury.

35I therefore cannot find in favour of the respondent’s causation argument—that it is not liable to pay for the disputed physiatry assessment—because there is insufficient evidence to show the applicant’s impairments resulted from an intervening event.

Reasonable and necessary

36The applicant submits his Section 25 physiatry examination, conducted by Dr. Yen-Fu Chen (physiatrist) on November 16, 2020,²⁵ was reasonable and necessary to obtain a thorough examination that could render a diagnosis and prognosis for his condition as well as provide recommendations to improve his condition.

37The respondent argues the disputed physiatry assessment is neither reasonable nor necessary because the applicant had already undergone a physiatry examination—performed by Dr. Ismail on behalf of the respondent—that had fully assessed the applicant’s injuries and determined the extent of this impairments. The respondent’s submission listed seven earlier assessments of the applicant’s physiological condition as further proof that no added physical assessment was required after the Section 44 physiatry assessment completed by Dr. Ismail in December 2019.

38In fact, Dr. Ismail’s report says the purpose of the examination was to determine the nature and consequence of any injury sustained because of the accident, and to address the disputed treatment plan in that context. His examinations concluded the applicant had sustained soft-tissue injuries consistent with those reported to his family physician after the accident—strains and sprains to his neck, shoulder, and lower back. Further, Dr. Ismail noted the applicant was still reporting pain from these injuries. But at that time, he found no evidence of ongoing musculoskeletal or neurological impairment caused by these injuries. ²⁶

39Dr. Ismail goes on to document details of the applicant’s treatment regimen at the time of his assessment. The doctor notes the applicant’s therapy started one to two weeks post-accident and continued twice weekly in addition to home treatment at the same frequency. I note the type of treatment—total body stretching and massage for his entire back—seems reasonable and necessary to address the soft-tissue nature of the injuries reported by Dr. Ismail. According to the applicant, this had produced a 50 per cent improvement in his accident-related symptoms, and Dr. Ismail’s prognosis for recovery was good.

40In contrast, the applicant—when assessed 11 months later by Dr. Chen during the disputed Section 25 assessment—was still complaining of pain, and especially in the neck and back. Dr. Chen reported the following physiological impairments:

a. Significant range of motion reduction:

i. Cervical spine (neck) extension

ii. Lumbar spine (lower back) extension

b. Moderate range of motion reduction:

i. Right side shoulder flexion

ii. Right side shoulder abduction

iii. Neck flexion

iv. Neck right rotation

v. Lower back flexion

vi. Lower back lateral bending (both to the left and right)

41Dr. Chen offered a poor prognosis for the applicant and confirmed the known diagnosis of musculoskeletal strains and sprains. Dr. Chen also offered multiple new diagnoses, including a chronic pain disorder, which—along with its associated psychological impacts—was identified as a barrier to recovery.

42These psychological injuries were later explored by Dr. Rod Day (psychologist) on April 13, 2021, as part of a Section 44 IE. ²⁷ Dr. Day’s report documents yet more new diagnoses—including a major depressive disorder and an adjustment disorder with anxiety—and associates the applicant’s psychological condition with the accident and its sequelae.

43The evidence presented in these reports by Drs. Ismail, Day and Chen combine to show the applicant’s condition had substantively changed by the time of Dr. Chen’s physiatry examination.

44When assessed by Dr. Ismail, the Applicant was regularly taking part in, and benefitting from, his treatment therapies. Dr. Day’s report too recognizes the benefit of this therapy, albeit temporary relief only. But Dr. Chen says the applicant had stopped therapy prior to his examination—reportedly due to an inability to pay for treatment.²⁸

45This is reiterated in the clinical notes and records of Physio Fix and Fitness, which report the applicant’s therapy continued only up to September 2020, which is approximately two months prior to the applicant’s examination with Dr. Chen. The Physio Fix and Fitness progress report completed by Dr. Thirunavukkarasu (chiropractor) on September 14, 2019, cautions “without physical rehabilitation, (the applicant’s) recovery will be delayed, and his condition can deteriorate.”²⁹

46Indeed, at the time of Dr. Chen’s examination some 14 months later—and at least two months after the applicant stopped his treatments—there were now functional impairments to the applicant’s range of motion and multiple new diagnoses. The applicant’s prognosis had also changed for the worse.

47In light of this deterioration of the applicant’s progress, I am persuaded it was both reasonable and necessary to undertake a new and updated examination of the applicant’s condition. As such, the applicant is entitled to the disputed physiatry assessment.

CONCLUSION AND ORDER

48i find the applicant has met his evidentiary onus and is entitled to the benefits and interest sought in the application.

49Per issue 2 (i), the respondent shall, per Section 38 (11) 2 of the Schedule, pay for all goods, services, assessments, and examinations described in the disputed treatment plan–along with any associated interest—that relate to the period, starting on the 11th business day after the day the respondent received the application, and ending on January 15, 2020, the date the respondent provided its proper notice, along with any applicable interest. The payment for goods will be adjusted to $39.97 for the electrical heating pad and $65.99 for the pillow.

50Per issue 2 (ii), the respondent shall, per Section 25 (3) iii of the Schedule, pay $2,573.00—along with any applicable interest—for the disputed physiatry exam.

Released: October 11, 2022

__________________________

Michael Beauchesne

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Letter dated April 26, 2021, TAB 7, page 263, respondent’s submissions.
3. 3OCF-18 dated October 18, 2018, TAB 1, pages 25-33, respondent’s submission
4. 4TAB A, page 9, paragraph 40, applicant’s submission.
5. 5TAB A, page 10, paragraph 44, applicant’s submission.
6. 6Paragraph 22, respondent’s submission.
7. 7Letter dated November 25, 2019, TAB C1, Page 170, respondent’s submission.
8. 8Including an OCF-23 (treatment confirmation form), an OCF-1 (application for accident benefits), an OCF-3 (disability certificate), OHIP records, clinical notes and records of Dr. Francisco, an OCF-24 (treatment discharge report), an OCF-18 (treatment and assessment plan), a physiotherapy assessment form, and a progress report from Physio Fix and Fitness.
9. 9Paragraph 38, applicant’s submission.
10. 10The completed report is dated January 8, 2020, and appears at Tab 5, pages 203-213, respondent’s submission.
11. 11Tab 5, page 200, respondent’s submission.
12. 12Page 7, paragraph 15, respondent’s submission.
13. 13Page 7, paragraph 15, respondent’s submission.
14. 14TAB C1, Page 163, respondent’s submission.
15. 15Page 7, paragraphs 16-17, respondent’s submission.
16. 16TAB C1, Page 163, respondent’s submission.
17. 17Health Claims for Auto Insurance (HCAI), Appendix E: List of Regulated Health Professionals and Health Practitioners.
18. 18TAB C1, page 163, respondent’s submission.
19. 19Financial Services Commission of Ontario, Superintendent’s Guideline No. 02/16, June 2016.
20. 20Page 8, paragraphs 18-19, respondent’s submission.
21. 21Paragraphs 14 and 15 of the respondent’s submission.
22. 22Sabadash v. State Farm et al., 2019 ONSC 1121.
23. 23Ibid. at paragraph 39.
24. 24Both the Form 8 and HAF are at TAB 8, applicant’s submission.
25. 25TAB 12, applicant’s submission.
26. 26Tab D1, page 286, respondent’s submission.
27. 27TAB 2, applicant’s reply submission.
28. 28Page 3, applicant’s reply submission.
29. 29Progress report dated September 14, 2019, TAB 18, applicant’s submission.