Licence Appeal Tribunal File Number: 20-013623/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:
Karolina Vaivadaite
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Karolina Vaivadaite, Applicant
Maria Papadopoulos, Paralegal
For the Respondent:
Matthew J. Stepura, Counsel
Court Reporter:
Breanna Clancy
HEARD: by Written Submissions and Videoconference
OVERVIEW
1Karolina Vivadaite, (“the Applicant”), was involved in an automobile accident on May 8, 2019, and sought benefits from Intact Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied certain benefits by 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 are;
Is the applicant entitled to receive a medical benefit in the amount of $1,046.08 for a functional ability evaluation recommended by Ontario Independent Assessment Centre, in a treatment plan dated November 14, 2019?
Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for a chronic pain assessment recommended by Ontario Independent Assessment Centre in a treatment plan submitted January 30, 2020?
Is the applicant entitled to receive a medical benefit in the amount of $1197.51 for a cognitive assessment recommended by Ontario Independent Assessment Centre in a treatment plan dated January 30, 2020?
Is the applicant entitled to receive a medical benefit in the amount of $1,791.91 for chiropractic treatment recommended by Humber Civic Care Centre, in a treatment plan dated February 5, 2020?
Is the applicant entitled to receive a medical benefit in the amount of $1,539.53 for chiropractic treatment recommended by Humber Civic Care Centre in a treatment plan dated September 24, 2020?
Is the applicant entitled to receive a medical benefit in the amount of $2,818.80 for chiropractic services recommended by Humber Civic Care Centre in a treatment plan dated December 16, 2020?
Is the applicant entitled to receive a medical benefit in the amount of $1,388.72 for driving evaluation assessment recommended by Ontario Independent Assessment Centre in a treatment plan dated October 14, 2020?
Is the applicant entitled to receive a medical benefit in the amount of $1,175.00 for biopsychosocial assessment recommended by Ontario Independent Assessment Centre in a treatment plan dated November 23, 2020?
Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for an Electromyography (“EMG”) assessment recommended by Ontario Independent Assessment Centre in a treatment plan dated September 24, 2020?
Is the applicant entitled to receive a medical benefit in the amount of $3,600.00 for an MRI recommended by Ontario Independent Assessment Centre in a treatment plan dated December 16, 2020?
Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payments of the benefits?
Is the applicant entitled to interest on any overdue payment of the benefits?
RESULT
3I find that that the chiropractic treatment plan dated February 5, 2020 is reasonable and necessary as a result of the subject accident.
4I find that the remaining treatment and assessment plans are not reasonable and necessary as a result of the accident.
5The Applicant is entitled to interest with respect to the February 5, 2020 treatment plan, pursuant to section 51 of the Schedule.
6No award is payable.
MOTION TO INCLUDE ADDITIONAL EVIDENCE
7At the onset on the videoconference component of the hearing, the Respondent asked that an updated social medial surveillance report be included in the hearing record. It submits that the report includes publicly available information, thus causing no prejudice to the Applicant. It further submits that, if any prejudice is determined, it can be remedied by providing an adjournment to permit the Applicant to review the material, or, the Applicant could be given an opportunity to submit reply material. It also submitted that the Applicant never produce updated clinical notes and records (“CNRs’) from Dr. M. Rotundo, her family physician, leaving a void of medical information during a time which the Applicant engaged in cosmetic surgeries subsequent to the accident, and that the report fills in that gap.
8In opposition, the Applicant submits that the report was produced after the document deadline, prejudicing her ability to review it, and that the report could have been produced earlier as the social media content was present then. She adds that the report is not relevant to the issues as it includes no medical opinion and that adjourning the hearing is a disproportional remedy.
9I omitted the social medial surveillance report because I found it was produced late and lacked sufficient relevance. The report was produced a week before the videoconference hearing and after the parties exchanged written submissions. I agree with the Applicant that the report could have been produced earlier, in accordance with the disclosure deadlines set by the Tribunal. In addition, the parties’ document briefs include medical opinions contemporaneous with the Applicant’s claims for benefits, leaving no void to fill. While it is true that the Applicant failed to produce updated CNRs, the parties may instead refer to the expert reports and opinions therein and do not need a social medial surveillance report to fill any gaps. The Applicant’s entitlement to the benefits claimed is dependent on the opinions of healthcare providers, not an investigator’s interpretation of what the Applicant’s social media posting indicates.
10The Respondent may rely on the evidence produced prior to the deadline to exchange documents. The Respondent provided a report on the Applicant’s social media that was produced and exchanged prior to the deadline to disclose evidence. I see no compelling reason why an updated social media report, produced after the document deadline, is relevant to determine the Applicant’s entitlement to the medical and rehabilitation benefits claimed.
THE ACCIDENT AND ACTIVITY THEREAFTER
11The Applicant was the driver of a sedan that was struck near the rear end on the passenger’s side by a vehicle that was exciting a commercial parking lot. She sought no medical attention at the scene of the accident but, the day after, she visited a walk-in clinic that serves as Dr. Rotundo’s office. The Applicant complained of headaches, body aches, nausea, and increased anxiety. No range of motion (“ROM”) deficits are reported or noted in the record from this visit. An initial neurological examination was conducted, with normal findings. Nevertheless, the Applicant was sent immediately to the hospital following that visit on account of her reported severe headaches. The walk-in clinic records note that the Applicant was advised to return to the clinic the next day for further evaluation or concussion directions, though she did not.
12Records from the May 9, 2019 hospital visit note that the Applicant complained of headaches and photophobia. No imaging was conducted. The Applicant was discharged with only a prescription for pain medication. I am unable to find any evidence demonstrating that the Applicant was diagnosed with a concussion during this hospital visit.
13The Applicant started physiotherapy, massage therapy, and chiropractic treatment on May 13, 2019. Initial clinic intake forms note that the Applicant reported to the assessor that she was diagnosed with a concussion as a result of the accident and was experiencing sensitivity to sound and light. The Applicant also reported that her injuries affect her activities such as toileting, wearing and removing clothes on her upper and lower body, applying makeup, donning and doffing socks and shoes, difficulty holding a cup or cutlery, and pain or limitations while getting out of bed, ambulating at home, and driving. She also reported difficulty participating in conversations and in social activities. Yet, as I noted, a concussion diagnosis is not present in the hospital and walk-in clinic records. In fact, the Applicant attended at game seven of a playoff series involving the Toronto Raptors and Philadelphia Seventy-Sixers, in person, later that evening. A few days after that, the Applicant travelled to France for eleven days starting on May 16, 2019.
14Despite being advised to return the following day, the Applicant did not return to the walk-in clinic until May 28, 2019, about three weeks after her fist visit. She complained of a cough, congested nose, sinus pressure, and no other symptoms. The Applicant made no accident-related complaints during this visit but returned to the clinic on May 31, 2019 for a follow-up visit regarding her accident-related injuries. She complained that her headaches and body aches persisted. The records from that visit note that the Applicant “was seen in ER and diagnosed with concussion”, which is inconsistent with the hospital records, as explained earlier.
15The Applicant visited the walk-in clinic again on June 3 and 18, 2019 but made no accident-related complaints. Her social media activity notes that the Applicant travelled again in July 2019, this time to Jamaica.
16The Applicant returned to the walk-in clinic on August 19, 2019 due to chronic back pain and was counselled on her Percocet use. The Applicant travelled to Spain the following day, returning to Toronto on August 31, 2019. She then travelled to Japan on October 16, 2019, Singapore the following day, and Hong Kong a week later. The Applicant’s next visit with Dr. Rotundo occurred on October 29, 2019, where she reported a dizzy bout while away (which resolved), memory problems, low back pain for a week, and headaches that she treats with Advil.
17The Applicant travelled to Dubai on November 23, 2019. While overseas, the Applicant posted photos and video from her trip. Photos include her standing in high heels on a couch in a club and sitting on a camel. The video posted included clips of the Applicant using waterslides and being active on other waterplay equipment.
18The Applicant was examined by Dr. N. Kasravi, neurologist, who issued an insurer’s examination (“IE”) report dated February 14, 2020. Dr. Kasravi found no objective evidence of a significant accident-related neurological injury or impairment but noted that her headaches are consistent with a diagnosis of post-traumatic headaches with migraine features. Dr. Kasravi also noted that the Applicant may be experiencing headaches due to medication overuse. The Applicant flew to London, England about four days following the IE. She returned to Toronto on March 20, 2020.
19On April 25, 2020, the Applicant had a telephone appointment with Dr. Rotundo to refill prescription medication. A note from that visit indicates that, although the Applicant sought a prescription refill, she reported “no Bad HA (headaches)”. There is no record of any other accident-related complaints made to Dr. Rotundo after this visit. Though, I acknowledge that the Applicant was referred to and assessed by Dr. V. Basile, neurologist, on May 4, 2020, and recommended to engage in further physiotherapy and chiropractic treatment, amongst other things, which I will address later.
20The Applicant contends that there is no contradiction between her social media postings and medical records. She submits that she can function with pain through the use of prescription medication and that ongoing treatment is beneficial. She submits that social medial postings can be edited and that they do not capture the extent of her injuries and experiences. The Applicant submits that her work requires her to make things look interesting and that she has been forthright with the Respondent about her employment and travel.
21To the Respondent, the Applicant’s social media posting causes it to question her credibility. It submits that the Applicant’s social media posts are contemporaneous with her claims, depict her engaging in activities that range from attending NBA games in person, shooting a semi-automatic firearm, using the slides and other equipment at a waterpark, and raising both arms above her head inside a club.
22I find that the Applicant’s social media postings provides some insight into the Applicant’s life however, the information is not of a medical nature and includes no opinion from a healthcare professional. As a result, the information is helpful but holds less weight than the medical reports. In this case, I have used the Applicant’s social media postings to confirm certain events following the accident and to compare and contrast the information with the Applicant’s self-reports to the various medical professionals involved in her care.
ANALYSIS
23The onus is on the Applicant to demonstrate that the treatment and assessments she seeks are reasonable and necessary as a result of the accident. For plans proposing rehabilitative treatment, the Applicant must demonstrate that the treatment goals are reasonable and can be met to a certain degree and the overall costs of achieving the goals of treatment should be reasonable. For plans that propose assessments, the Applicant must demonstrate that there is a likelihood that she is impaired as a result of the issue being assessed.
$1,046.08 Functional Ability Evaluation Plan (“FAE”) dated November 14, 2019
24I find that the Applicant has not met her burden to demonstrate that an FAE is reasonable and necessary.
25I find that the FAE is not reasonable and necessary because there is no compelling contemporaneous evidence demonstrating that the Applicant suffers from a level of functional impairment which would require an assessment. Dr. Rotundo’s CNRs note some reduced ROM on May 31, and November 15, 2019, and back pain and headaches but no ROM reduction or functional deficits are noted during visits on August 19 and October 29, 2019. The Applicant also visited Dr. Rotundo on June 3 and 18, 2019, but did not mention any accident-related complaints. Dr. Rotundo’s CNRs include no referrals to other care providers regarding a functional deficit. Instead, Dr. Rotundo advised the Applicant to engage in physiotherapy and exercise to address her back pain. Likewise, the Applicant reported independence with her activities of daily living and self-care to Dr. M. Khaled, physician, as reported in the December 6, 2019 IE report. The Applicant returned to work as a model/social media influencer by Autumn 2019, which included travel overseas about eight days after the accident and again in July, August, October, and November 2019.
26The evidence indicates that the Applicant remains functional. The notes in Dr. Rotundo’s CNRs indicate some reduced ROM but do not describe any meaningful functional impairment. The fact that the Applicant traveled overseas on several occasions following the accident but prior to this proposed assessment, coupled with the activity depicted in the social medial posts from the waterpark, indicate that she is functional and does not suffer from functional impairment.
27The Respondent is permitted to approve funding for a chiropractic treatment plan but not the FAE. The Applicant implies that the FAE is reasonable and necessary because a chiropractic treatment plan dated October 10, 2019 was approved by the Respondent and because Dr. Khaled acknowledged her functional deficits in the December 6, 2019 IE report, noting that the Applicant exhibited near full function ROM in the neck, left arm, and back. As a result, the Respondent approved funding for the chiropractic treatment plan and denied the FAE on account of Dr. Khaled’s recommendation. Dr. Khaled opined that some additional facility-based treatment could help the Applicant, but that the FAE would not be reasonable or necessary after that course of treatment. I agree with Dr. Khaled considering the objective findings noted in the IE report and the functionality exhibited by the Applicant’s ability to return to work as depicted in her social media postings and her independence with personal care activities.
28The reports and CNRs indicate that the Applicant is functional and does not suffer from a functional impairment. Thus, there is no need to evaluate her functional ability, rendering the treatment and assessment plan to be not reasonable and necessary.
$2,200.00 Chronic Pain Assessment Plan dated January 30, 2020
29I find that the chronic pain assessment is not reasonable and necessary as a result of the accident because the Applicant does not exhibit the symptoms typically associated with a chronic pain condition that would warrant an assessment. In the past, the Tribunal has considered chronic pain conditions in the context of the American Medical Associates Guides, (“the AMA Guides”), or whether the pain is ongoing or recurrent beyond the typical healing time and which adversely affects the Applicant’s well-being.
30The Applicant has not demonstrated that her well-being is adversely affected by pain. The evidence shows that the Applicant is functional and able to complete her activities of daily living and personal care and returned to work and overseas travel.
31The Applicant has not demonstrated that she meets four of the six criteria listed in the AMA Guides. The criteria are:
(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
(ii) Excessive dependence on health care providers, spouse, or family;
(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;
(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
32The Applicant’s medication overuse is not related to the accident as she used Percocet prior to the accident, and she directed me to no evidence demonstrating that her Percocet use increased as a result of the accident. Similarly, the Applicant experienced anxiety and depression prior to the accident and continued driving after the accident. There is no evidence indicating a dependence on family members or medical practitioners and the Applicant continues to work and socialize. There is no indication that the Applicant has deconditioned due to disuse or fear-avoidance. The Applicant restored her pre-injury function and has returned to work and overseas travel. At best, the Applicant meets two of the four criteria. Meeting, at most, two of four factors, coupled with her ability to complete her activities of daily living and personal care and to return to work, is insufficient to warrant a chronic pain assessment.
$1,197.51 Cognitive Assessment Plan dated January 30, 2020
33The Respondent’s preliminary issue motion is related to this issue. It seeks to bar the Applicant from disputing its denial of this treatment and assessment plan because the Applicant failed to attend the IE scheduled in response to the Applicant’s claim for this treatment and assessment plan.
34I find that the Applicant may proceed with her application to dispute the Respondent’s decision to deny funding for the cognitive assessment plan. However, I find that the cognitive assessment plan is not reasonable and necessary as a result of the accident.
35I find that the Applicant may proceed with the application for this assessment because the Respondent failed to provide evidence that it met the compulsory requirements outlined in section 44(5) of the Schedule. Thus, the Respondent is not permitted to rely on section 55 of the Schedule.
36Section 55 precludes the Applicant from filing an application to appeal a denial in the event that she failed to attend an IE that was properly scheduled pursuant to section 44 of the Schedule. However, section 55 may not be invoked unless the Respondent provides a proper notice of the IE, which includes the medical and any other reasons for the IE. As noted in M.B. v. Aviva1, the medical and “other reasons should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue”.
37The IE notice states:
Medical Reason: We are arranging an Insurer’s Examination to determine if the requested assessment is reasonable and necessary, there are no persuasive rationales or supporting information provided to warrant or justify this request. OCF 18D $1197.51 OT
38I find that the medical and other reasons for the IE are insufficient. The notice includes no information about the Applicant’s condition and does not provide a reasonable amount of information to allow the Applicant to make an informed decision to either accept or dispute the denial.
39The Applicant may proceed with her application to dispute her entitlement to the cognitive assessment plan because the IE notice was insufficient. Thus, the onus is on the Applicant to demonstrate that the cognitive assessment plan is reasonable and necessary as a result of the accident.
40I find that a cognitive assessment is not reasonable and necessary as a result of the accident. The assessment is proposed on account of the Applicant’s reports that she experiences short term, long term, and working memory issues as well as concentration difficulties. The plan notes that the Applicant experiences substantially reduced performance with activities of daily living in areas of housekeeping and homemaking, productivity and leisure domains. Additional comments in the plan note that the Applicant had pre-accident sleep issues which worsened following the accident and that she reported slurring her words following the accident.
41I find the cognitive assessment not reasonable and necessary because there is insufficient evidence demonstrating that the Applicant suffers from the issues it poses to address. Neurological examinations immediately following the accident were normal. The Applicant’s medical record includes no reference to her slurring her words following the accident. No imaging was done at the hospital following the accident and no diagnosis of a concussion was ever rendered by Dr. Rotundo during the initial visits or any healthcare provider at the hospital. Similarly, the evidence suggests that the Applicant returned to her pre-accident activity levels, contrary to the information in the disputed treatment and assessment plan. She returned to work as a social media influencer, returned to international travel, and is independent with her personal care.
42Furthermore, a cognitive assessment is redundant in light of the approved neurological assessment and IE. The IE report by Dr. N. Kasravi, neurologist, determined that the Applicant exhibited no objective neurological impairment, but nevertheless recommended funding for a neurological assessment to investigate the Applicant’s headache complaints. Remarkably, no reports of cognitive or memory issues were recorded from the Applicant during the neurological assessment.
$1,791.91 Chiropractic Treatment Plan dated February 5, 2020,
$1,539.53 Chiropractic Treatment Plan dated September 24, 2020, and
$2,818.80 Chiropractic Treatment Plan dated December 16, 2020
43I find the chiropractic treatment plan dated February 5, 2020 to be reasonable and necessary. However, I find that the treatment plans dated September 24 and December 16, 2020 are not reasonable and necessary.
44The three treatment and assessment plans propose chiropractic and physiotherapy treatment as well as personalized exercise. They aim to help the Applicant increase strength and ROM, reduce pain, improve endurance, and prevent chronic injuries. The injuries listed on the treatment plan, in order of severity, include concussion and post concussion symptoms followed by sprain and strain injuries to the neck, back, shoulders, hips, and knees.
45The treatment plan dated February 5, 2020 is reasonable and necessary in light of the recommendations from Dr. Rotundo and Dr. Basile, who both advised the Applicant to engage in physiotherapy and other treatment to address her soft tissue injuries. Dr. Rotundo recommended ongoing therapy during a visit on February 5, 2020, and referred the Applicant to Dr. Basile on account of the Applicant’s complaints of blurred vision and left side numbness. Dr. Basile assessed the Applicant via videoconference on May 4, 2020 and, while the report has issues which I will address later, recommended further physiotherapy, chiropractic, and other treatment.
46The recommendations by Dr. Rotundo and Dr. Basile are compatible with Dr. Khaled’s recommendation for the Applicant to engage in active exercise. Dr. Khaled felt that the Applicant would no longer benefit from facility-based treatment and could complete a home exercise program instead. However, given the Applicant’s psychological complaints which include anxiety and depression, I find that the Applicant would benefit from the assistance of a healthcare provider in order to permit her to transition to an independent, self-directed exercise program, as suggested.
47I find insufficient evidence to support the chiropractic treatment plans dated September 24 and December 16, 2020. Unlike the CNRs from the February 5, 2020 visit with Dr. Rotundo, there is no evidence to suggest that Dr. Rotundo recommended ongoing therapy. The Applicant produced Dr. Rotundo’s records up to September 24, 2020. The Applicant’s last three visits to Dr. Rotundo, dated June 24, July 22, and September 24, 2020 all note no accident-related complaints. The June visit notes the Applicant as “doing generally well”. The July visit notes that the Applicant is going to Spain, has no bad headaches, and mentions no accident-related complaints. The last visit, on September 24, includes no accident-related complaints or issues. Simply put, Dr. Rotundo never recommended further treatment beyond the February 5, 2020 recommendation.
48Dr. Basile’s report dated May 4, 2020 is unpersuasive. Dr. Basile assessed the Applicant via videoconference which involved no in-person examination due to the onset of the COVID-19 pandemic. To me, Dr. Basile’s assessment and account of the Applicant’s medical history is inconsistent with the other records. Dr. Basile noted that the Applicant’s medical history was unremarkable, and she used no prescription pain medication prior to the accident. Yet, a review of the records indicates a history involving two motor vehicle accidents, cosmetic surgeries, sleep disorders, anxiety and depression, prescriptions for Percocet due to chronic pain, and an unspecified left wrist injury.
49In addition to the issues listed above, Dr. Basile’s recommendation is not contemporaneous with the September and December 2020 treatment plans and there is no other compelling evidence to support the Applicant’s claims. The report by Dr. Basile predates the treatment plans by five to eight months and there are no CNRs from Dr. Rotundo for the same period. The CNRs from the treatment facility are difficult to read and provide little insight into the Applicant’s physical health. The Applicant must provide more evidence to support her claims than the treatment records from the facility she attends at, considering the lack of corroborating evidence and Dr. Khaled’s various reports and recommendations for self-directed exercise.
50Considering the evidence, I find that the Applicant has demonstrated that the February 5, 2020 chiropractic treatment plan is reasonable and necessary as a result of the subject accident. However, she has not demonstrated that the chiropractic treatment plans dated September 24 and December 16, 2020 are reasonable and necessary as a result of the accident.
$1,388.72 Driving Evaluation Assessment Plan dated October 14, 2020
51I find that a driving evaluation assessment is not reasonable and necessary as a result of the accident.
52The Applicant’s reports are inconsistent with her behaviour. The Applicant confirmed that she drives herself to and from treatment following the accident. Her treatment records include no reports of panic attacks or other issues while driving to treatment. In addition, the Respondent approved funding for psychological treatment which addressed the Applicant’s driver’s anxiety, which appears to be minor.
53The report of psychological associate, M. Chiodo does not support the Applicant’s claim. In the November 29, 2019 report, M. Chiodo recommended that the Applicant participate in a driving desensitization program if her vehicle travel anxiety does not dissipate following a course of treatment (emphasis added). In the July 16, 2020 report, psychological associate Chiodo recommended further psychological treatment through the Applicant’s social worker, but made no recommendation for a driving evaluation. Considering the remarks in the November 29, 2019 report and the absence of similar remarks in the July 16, 2020 report, I conclude that the Applicant requires no treatment or further assessment for driving anxiety.
$1,175.00 Biopsychosocial Assessment Plan dated November 23, 2020
54I find a biopsychosocial assessment to be not reasonable and necessary as a result of the accident.
55The assessment plan lists goals of helping the Applicant emotionally and to reintegrate into and strengthen family, social and community networks. It seeks to help identify social work issues and create a plan related to individual and family functioning, employment and reintegration. The plan notes that the Applicant experiences social isolation, interpersonal relationship problems, financial problems, functional ability limitations, difficulty with activities of daily living affecting her social, emotional, and mental well-being.
56A biopsychosocial assessment is not recommended in the psychological assessment reports. The report by psychological associate Chiodo recommends ongoing cognitive behavioural therapy only – there is no recommendation for a biopsychosocial assessment. Psychological associate Chiodo noted that the Applicant stated that she has no desire to engage in social activities, but confirmed interacting with friends, recently trying cycling, and hiring a personal trainer to begin an exercise program.
57The Applicant does not exhibit the issues the assessment seeks to examine. She returned to work, social activities, overseas travel, and her personal care activities following the accident. Her social media posts, highlighting her social endeavours, include posts depicting the Applicant engaging in activities such as dining or attending events with friends.
$2,200.00 EMG Assessment Plan dated September 24, 2020 and $3,600.00 MRI Assessment Plan dated December 16, 2020
58I find that the EMG and MRI assessment plans are not reasonable and necessary as a result of the accident. The Applicant claimed entitlement to these assessments based on the recommendation from Dr. Basile to conduct the assessments in order to rule out other injuries, such as radiculopathy.
59The Applicant’s family physician never recommended an MRI. Dr. Rotundo’s CNRs include no recommendation for an MRI and there is no suggestion in the records that the Applicant requires additional investigations. Dr. Rotundo’s CNRs end Sept 24, 2020. That visit consisted of complaints that are unrelated to the accident. Prior to that, the Applicant met with Dr. Rotundo on July 22, 2020 to refill prescription medications in advance of overseas travel. The Applicant reported no bad headaches and no accident-related complaints. Prior to that, on June 24, 2020, the Applicant reported to Dr. Rotundo that she was doing generally well.
60I prefer the opinion of Dr. Khaled over Dr. Basile. Dr. Khaled’s opinion is more consistent with Dr. Rotundo’s management of the Applicant’s accident-related injuries. Dr. Khaled assessed the Applicant in-person and conducted a paper review specific to this issue. Dr. Khaled determined that, from a physical perspective, the Applicant sustained uncomplicated soft tissue injuries only, and noted that there was no indication whatsoever that the Applicant sustained any other significant injuries that would require an MRI. Whereas Dr. Basile assessed the Applicant once, via telemedicine, and determined that EMG and MRI assessments were necessary to rule out other injuries as the Applicant complained of radiculopathy at C5-C6 and L5-S1. I find it unnecessary to conduct an EMG and/or MRI to rule out other injuries when physical examinations reveal no neurological or orthopaedic sequalae.
INTEREST
61Interest is payable on the overdue payment of benefits, pursuant to section 51 of the Schedule. As the Applicant is entitled to the chiropractic treatment plan dated February 5, 2020, it follows that she is also entitled to interest as well.
AWARD
62The Applicant may be entitled to an award of up to 50% of the amount withheld or delayed if I determine that the Respondent unreasonably withheld or delayed the payment of benefits. For the following reasons, I find that an award is not warranted and there is no evidence demonstrating that the Respondent unreasonable withheld or delayed the payment of benefits.
63The Applicant claims entitlement to an award and submits that it is because the Respondent withheld or delayed payment of an invoice related to approved treatment, resulting in an outstanding balance of $3,586.26. She submits that the unpaid balance negatively affects her financially and psychologically. The Applicant also mentioned that the respondent scheduled 15 IEs, with costs totalling $14,179.75, while only paying for treatment totalling $8,979.51. I infer from her submissions that the Applicant considers the lopsided allocation of funds to IEs, rather than medical benefits, to be unreasonable and inconsistent with the Respondent’s duty of good faith to the Applicant.
64The Respondent’s position on an award is two-fold. It submits that it was unaware of the unpaid, but approved, treatment and that it made payment immediately after discovering it thanks to the Applicant’s submissions. The Respondent also submits that the Applicant failed to give particulars of her award claim, as ordered by the Tribunal. I infer from this latter point, that the Respondent suggests that the Applicant’s claims for an award are made improperly.
65The Respondent is not held to a standard of perfection and administrative mistakes are not grounds for an award. I agree that the Respondent failed to remit payment of approved and incurred treatment. However, I find that the failure to pay appears to be an oversight and is not an example of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour. The Respondent received the invoices and requested statutory declarations and sign-in sheets from the service provider. It appears that the statutory declaration and sign-in sheets were never provided. In any event, I appreciate that the Respondent mitigated the issue and remitted payment to the treatment facility upon receipt of the Applicant’s submissions. Further, there is no evidence that suggests that the Respondent’s failure to pay an account had any impact on the Applicant’s access to treatment.
66The Respondent is permitted to conduct IEs. Section 44 of the Schedule permits the Respondent to have a regulated health professional assess the Applicant to determine if she is entitled to, or remains entitled to, certain benefits. The Respondent’s right to an IE is conditional on it providing proper notice of the IE and may not be done more than reasonably necessary. Here, I determined that the neurological IE notice was improper and applied the remedy in allowing the Applicant to proceed with her application. Otherwise, the Applicant provides no submissions or evidence to suggest that the IEs were done more than reasonably necessary. Indeed, the Respondent paid a considerable amount more towards IEs than it did to the Applicant’s treatment, but this fact does not entitle the Applicant to an award.
67The Respondent is permitted to seek statutory declarations from service providers. Section 46.2(1)2 of the Schedule permits the Respondent to seek a statutory declaration from a service provider as it relates to the circumstances that gave rise to the invoice, including particulars of the goods and services provided. Thus, the Respondent was within its right to request the additional information in response to the invoices. Further, I am satisfied that the Respondent’s failure to pay was inadvertent because it remitted payment immediately once the issue was brought to light via the Applicant’s initial written submissions.
CONCLUSION
68The chiropractic treatment plan dated February 5, 2020 is reasonable and necessary as a result of the accident. The Respondent is liable to pay for the goods and services listed in the plan, once incurred and properly invoiced. Interest is payable pursuant to section 51 of the Schedule.
69The remaining benefits claimed are not reasonable and necessary. The Respondent is not liable to pay for the benefits claimed.
70The Applicant is not entitled to an award.
Released: October 24, 2022
__________________________
Brian Norris
Adjudicator