Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-011829/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:
Rafaella Mattina
Applicant
and
Federated Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Jacob Sazio, Counsel
For the Respondent: Nicholas M. Wine, Counsel
HEARD: In Writing
OVERVIEW
1Raffaella Mattina, the applicant, was involved in an automobile accident on February 14, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Federated Insurance Company of Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $1,646.25 for physiotherapy services proposed by Upper James Physio in a treatment plan/OCF-18 (“plan”) dated December 10, 2020, and denied December 17, 2020?
ii. Is the applicant entitled to a medical benefit in the amount of $1,660.69 for assistive devices and occupational therapy, proposed by Ross Rehabilitation in a treatment plan/OCF 18 (“plan”) dated January 16, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the treatment plan for physiotherapy, in the amount of $1,646.25.
4The applicant is entitled to the remaining amount of the treatment plan for assistive devices and occupational therapy in the amount of $1,660.69.
5The applicant is entitled to interest in accordance with s. 51 on any overdue payments.
6The applicant is not entitled to an award.
ANALYSIS
Background
7To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is entitled to the treatment plan for physiotherapy services.
8I find that the applicant is entitled to the treatment plan for physiotherapy services.
9The OCF-18 for physiotherapy identifies the plan’s objectives as pain reduction, increased strength and range of motion, and a functional goal of returning to the activities of normal living. It notes that the applicant is still experiencing pain with most activities of daily living, but able to maintain range of motion and strength in the shoulder through her therapy and exercise program.
10The applicant submits that the cost of the plan is modest, and the treatment is reasonable and necessary to increase her function and independence while reducing her pain. The applicant affirms that she has received some benefit from her previous physiotherapy treatment and has incurred out-of-pocket expenses since the respondent’s denial of the plan. She further submits that the respondent denied the plan based on the length of time since the accident, and highlights that a previous Tribunal application was decided in her favour.
11The respondent submits that a substantial amount of physical therapy was already funded without any functional improvement in the applicant’s condition, and that the plan was denied due to lack of medical evidence, not because of the length of time that had passed since the accident. The respondent further submits that the previous Tribunal decision in the applicant’s favour was decided on procedural grounds, not merit.
12The applicant relies on an extensive medical history of diagnoses, recommendations, and clinical notes and records (“CNRs”) that document her physical and psychological symptoms as a result of the accident. Noteworthy is the Multidisciplinary Independent Medical Assessment of Dr. Ko dated May 27, 2019, in which the details of her medical history are outlined with reference to the following:
i. the ambulance call report and hospital records on the day of the accident;
ii. the CNRs of her general practitioners (“GPs”) Drs. Greenspon and Rizzo;
iii. the CNRs of her physiatrists Drs. Leone and Bentley; and
iv. the CNRs of her physiotherapists at Upper James Physio.
Dr. Ko concluded that the applicant suffers from chronic neck pain, diffuse chronic neuropathic pain syndrome, and generalized deconditioning, among other symptoms.
13The respondent relies primarily on the 2021 physiatry report of Dr. Hosseini, who found that the treatment proposed in the OCF-18 would not provide any further therapeutic benefit because the applicant had only reported a 10% improvement in her symptoms, had only experienced temporary pain relief and had no functional improvement. The respondent points out that the applicant’s pursuit of physiotherapy was intermittent in the years following the accident, with a lack of supporting CNRs from the clinic at the time of the OCF-18 submission.
14The respondent also notes a lack of contemporaneous recommendations for physiotherapy around the time of the OCF-18, underlining that Drs. Zizzo, Leone, and Bentley had each recommended physiotherapy and/or multidisciplinary treatment, albeit in the past. Further, the respondent submits that the findings of several other physicians do not support additional physiotherapy treatment, as follows:
- Dr. Gharsaa, an orthopaedic surgeon who diagnosed the applicant in 2016 with soft tissue injuries. Self-directed home exercises were recommended.
- Dr. Axelrod, an orthopaedic surgeon who diagnosed the applicant with frozen shoulder in 2019, opined that physiotherapy would provide no therapeutic benefit as she had reached maximal medical recovery.
- Section 44 physiatrist Dr. Hosseini reported in 2021 that the applicant had reported no improvement in her symptoms from her previous physical therapy, opining that a chronic pain clinic would be better placed to address her symptoms.
15While I acknowledge that some physicians have concluded that the applicant would not benefit from further physiotherapy, I am persuaded otherwise by the detailed comments and recommendations from other healthcare providers on the applicant’s medical team as follows:
i. Dr. Ko oversaw a Multidisciplinary Assessment at the Functional and Soft Tissue Evaluation Centre (“FASTEC”). Dr. Ko defines the term “disability” in thoughtful detail and acknowledges that the applicant has a number of impairments that may never fully resolve and cause an ongoing source of pain, suffering and limitation. Despite the guarded prognosis, he goes on to discuss the impact of chronic pain and fibromyalgia, noting that these conditions can be difficult to treat, and improvements can have an impact on improved function and quality of life. Specific recommendations are made for a core strengthening program to be provided “by an experienced physiotherapist, chiropractor, or exercise therapist”, and specific rehabilitation of the cervical spine “to be performed by an experienced physiotherapist or chiropractor familiar with the protocols”.
ii. Likewise, Dr. Leone notes that the applicant’s issues with her shoulder are a debilitating problem and difficult to treat. In his report dated July 23, 2015, he notes that her shoulder could take several years to resolve with “persistent” physiotherapy. Due to her deconditioning and poor abdominal strength Dr. Leone recommends a course of physiotherapy that is “ongoing” based on the severity of her adhesive capsulitis (frozen shoulder injury).
iii. Lastly, physiotherapist Schilthuis proposed 15 sessions of physical rehabilitation in the OCF-18 dated December 10, 2020; and occupational therapist (“OT”) Husain recommended physiotherapy in three separate reports dated June 18 and July 27, 2019, and January 3, 2022.
16Despite the respondent’s submissions that ample physiotherapy has already been funded without substantial improvement, the many recommendations for focused and ongoing physiotherapy from experienced professionals are convincing in the context of the applicant’s efforts to maximize her functional abilities while dealing with fibromyalgia and chronic pain.
17I find that the treatment plan for physiotherapy is reasonable and necessary.
The applicant is entitled to the balance of the treatment plan for assistive devices and occupational therapy.
18I find that the applicant is entitled to the balance of the treatment plan for assistive devices and occupational therapy.
19In submissions, the applicant states that following a s. 44 assessment, the respondent had partially approved the plan, in the amount of $1,845.89 for the occupational therapy component. However, the proposed assistive devices were not approved leaving $1,660.69 in dispute. The OCF-18 described the objective of the plan as pain reduction with a functional goal of a return to the activities of normal living. It refers the reader to an OT Home Assessment Report by Ms. Husain dated January 3, 2022, and provides a list of the recommended assistive devices such as heat pad, hot/cold gel pack, kitchen/perching stool, among many others.
20The applicant submits that she requires the assistive devices to address her restricted mobility and chronic pain in order to improve her ability to complete self-care and household tasks. For its part the respondent submits that its s. 44 assessor OT Kaine found that the applicant was functionally capable for most tasks, that the recommendations from OT Husain were too general, and none of the applicant’s physicians recommended assistive devices.
21In my view, there is enough evidence to conclude that the assistive devices would help address the applicant’s significant functional limitations and chronic pain.
22The applicant points to the thorough in-home assessment performed by OT Husain that contains recommendations for assistive devices to address the applicant’s functional status. These recommendations were based on her medical history and the physical on-site assessment. Ms. Husain found that the applicant had restricted mobility, limitations with various self-care tasks, headaches, and chronic pain in her neck, shoulder, low back and hips. These devices were recommended to assist her with household tasks such as meal preparation, housekeeping, and homemaking.
23The applicant disagreed with the respondent’s s. 44 assessor, OT Kaine, who found that she displayed functional limitations with tasks such as bending, lifting, and carrying, yet also concluded that there was no objective evidence to support the addition of assistive devices. He recommended occupational therapy for motor and living skills. The applicant submits that OT Kaine did not properly consider the evidence in relation to her functional limitations, citing the example of OT Husain’s recommendation for a robot vacuum to assist her in the demanding task of vacuuming floors.
24The respondent submits that the recommendations from OT Husain were too general, that OT Kaine found the applicant to be functionally capable for most tasks, and that there were no recommendations in the CNRs of her other treatment providers for assistive devices. OT Kaine concluded that the applicant only required assistance with heavier cleaning and there was no evidence to support the need for the proposed assistive devices. He referred to the findings in OT Husain’s report, indicating that she recommended both physiotherapy and the devices without any supporting evidence or details. The respondent describes the assessor’s reasoning about the need for the devices as too general, pointing to phrases such as “to reduce pain”.
25Both parties agree that the applicant suffers from functional impairments that affect her function and quality of life. However, they reach different conclusions about the need for the assistive devices recommended by OT Husain. I prefer the evidence of the applicant and find OT Husain’s report thorough and with enough detail to support the recommendations. With regard to there being no recommendations in the CNRs of other treating practitioners, I would not necessarily expect there to be, given that it is the OT who has a specific expertise in assessing a patient for adaptive tools in a home setting. In any case, Dr. Ko provides support in the “concise summary” section of his Comprehensive Multidisciplinary Independent Medical Assessment, noting that the applicant “does require housekeeping and home maintenance assistance”.
26I find that the applicant is entitled to the balance of the treatment plan for assistive devices and occupational therapy as it is reasonable and necessary.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
28In accordance with s. 51, the applicant is entitled to interest on overdue payment of benefits for:
i. the physiotherapy treatment plan in the amount of $1,646.25; and
ii. the remainder owing on the treatment plan for assistive devices and occupational therapy in the amount of $1,660.69.
Award
29The applicant sought an award under s. 10 of Reg. 664.
30The Tribunal assesses an award based on whether the insurer’s behaviour is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate,” and may award up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
31The applicant seeks an award of 50 per cent of the total benefits payable arguing that the respondent has established a pattern of acting unreasonably in the assessment of her benefits, despite the substantial body of medical evidence submitted. Further, she asserts that the insurer has used the length of time since the accident as a basis for its denials while ignoring the medical evidence. Lastly, the applicant points out an apparent administrative error in the explanation of benefits dated December 17, 2020, which contained content that appeared to be from another insured person’s file, perhaps a cut and paste error.
32In response, the insurer asserts that it adjusted the file in a reasonable way based on the opinions of its medical assessors and the documentation available. It asserts that the applicant’s medical condition is an ever evolving one and the approval of one treatment plan should not necessarily result in the approval of subsequent ones.
33While I agree that the respondent had access to extensive medical documentation through a previous Tribunal application, I am not persuaded that the respondent’s adjustment of the file rises to the threshold for an award. An applicant’s condition develops over time, and the supporting documentation for one application does not necessarily apply equally to a subsequent one, even if the first one is decided in favour of the applicant. After reviewing the documentation, I did not find evidence of a deliberate error in the explanation of benefits, although perhaps an administrative one, and I did not find compelling evidence that the respondent unreasonably withheld or delayed the payment of benefits.
34I find that the applicant has not demonstrated that an award is merited.
ORDER
35The applicant is entitled to:
i. the treatment plan for physiotherapy in the amount of $1,646.25, plus interest in accordance with the Schedule; and
ii. the balance of the treatment plan for assistive devices and occupational therapy in the remaining amount of $1,660.69, plus interest in accordance with the Schedule.
iii. The applicant is entitled to interest in accordance with the Schedule.
36The applicant is not entitled to an award.
Released: November 17, 2023
Bonnie Oakes Charron
Adjudicator