Hussein Salsal v. Travelers Insurance Company of Canada, 2023 CanLII 13096

Licence Appeal Tribunal File Number: 20-010084/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:

Hussein Salsal Applicant

and

Travelers Insurance Company of Canada Respondent

PANEL:

DECISION Brett Todd, Vice-Chair Anita John, Adjudicator

APPEARANCES:

For the Applicant: Hussein Salsal, Applicant Jessica Fullerton, Counsel

For the Respondent: Helen Eliopoulos, Adjuster Sara Baum, Counsel

Interpreters: Omar Omar, MCIS (Somali), August 3, 2022 Layla Sheikhmur, MCIS (Somali), August 4, 2022

Court Reporter: Alyssa Scott

HEARD: By Videoconference: August 3 and 4, 2022 (Written Closing Arguments submitted August 12 and August 19, 2022)

BACKGROUND

1Hussein Salsal (the “applicant”) was injured in an automobile accident on November 18, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Travelers Insurance Company of Canada (the “respondent”).

2The applicant was a passenger on an OC Transpo bus in Ottawa when it collided with a passenger vehicle, causing him to be thrown against metal bars on the back of a bus seat. He sought medical treatment for injuries. The respondent approved certain medical benefits, but only partially approved two of the treatment plans at issue and denied four others.

3The applicant applied to the Licence Appeal Tribunal (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

4The following issues are to be decided:

Is the applicant entitled to assistive devices in the amount of $1,033.07 ($1,703.55 less $670.48 approved) recommended by Modern OT in a treatment plan/OCF-18 (“plan”) dated November 8, 2019?
Is the applicant entitled to occupational therapy services/assistive devices in the amount of $1,470.43 recommended by Modern OT in a plan dated April 16, 2021?
Is the applicant entitled to occupational therapy services in the amount of $4,675.07 ($5,459.55 less $784.48 approved) recommended by Modern OT in a plan dated November 8, 2019?
Is the applicant entitled to occupational therapy services in the amount of $7,581.50 recommended by Modern OT in a plan dated February 26, 2021?
Is the applicant entitled to physiotherapy services in the amount of $2,493.53 recommended by Pro Physio & Sport Medicine Centres in a plan dated March 10, 2021?
Is the applicant entitled to kinesiology services in the amount of $3,040.68 recommended by Modern OT in a plan dated March 4, 2021?
Is the applicant entitled to an award because it unreasonably withheld or delayed payments to the applicant, pursuant to s. 10 of Regulation 664?
Is the applicant entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule?

RESULT

5We find that the applicant is entitled to:

i. Assistive devices in the amount of $1,033.07 ($1,703.55 less $670.48 approved) recommended by Modern OT in a plan dated November 8, 2019, plus applicable interest on any overdue incurred amounts, pursuant to s. 51 of the Schedule.

ii. Occupational therapy services/assistive devices in the amount of $1,470.43 recommended by Modern OT in a plan dated April 16, 2021, plus applicable interest on any overdue incurred amounts, pursuant to s. 51 of the Schedule.

iii. Occupational therapy services in the amount of $4,675.07 ($5,459.55 less $784.48 approved) recommended by Modern OT in a plan dated November 8, 2019, plus applicable interest on any overdue incurred amounts, pursuant to s. 51 of the Schedule.

iv. Occupational therapy services in the amount of $7,581.50 recommended by Modern OT in a plan dated February 26, 2021, plus applicable interest on any overdue incurred amounts, pursuant to s. 51 of the Schedule.

6We find that the applicant is not entitled to:

i. Physiotherapy services in the amount of $2,493.53 recommended by Pro Physio & Sport Medicine Centres in a plan dated March 10, 2021.

ii. Kinesiology services in the amount of $3,040.68 recommended by Modern OT in a plan dated March 4, 2021.

iii. Interest on the above treatment plans.

7We find that the applicant is not entitled to an award.

ANALYSIS

Are the Treatment Plans Reasonable and Necessary?

8Sections 14, 15, and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person who sustains an impairment as a result of an accident.

9The applicant bears the burden of proving on a balance of probabilities that any treatment plan is reasonable and necessary. The applicant must also identify the goals of the plans, how the goals are being met to a reasonable degree, and whether the time and cost expended to achieve these goals is proportional to the benefits.

Assistive Devices Treatment Plan, $1,033.07, November 8, 2019

Occupational Therapy/Assistive Devices Treatment Plan, $1,470.43, April 16, 2021

Occupational Therapy Services Treatment Plan, $4,675.07, November 8, 2019

Occupational Therapy Services Treatment Plan, $7,581.50, February 26, 2021

10We find that the applicant is entitled to the four treatment plans listed above, plus applicable interest on any overdue incurred payments, as they have been proven to be reasonable and necessary.

11With regard to the first treatment plan dated November 8, 2019, we assign significant weight to this OCF-18, authored by Sandeep Kaushik, occupational therapist, and his testimony during the hearing. His observations that the applicant suffered from low back pain, chronic intractable pain, and lumbar and other intervertebral disc disorders with radiculopathy are well supported by a preponderance of the medical evidence. Insurer examination (“IE”) reports by Dr. Usha Buenger, physiatrist, and Dr. Douglas Ritter, orthopaedic surgeon, dated August 10, 2017 and June 21, 2021, respectively, note back pain, soft tissue injury to the spine, and back strain that aggravated pre-existing issues of degenerative disc disease. Mr. Kaushik’s recommendations for the installation of a padded bathtub transfer bench, a handheld shower hose, three grab bars, three grab bar mounting kits, grab bar installation, an EZ assist bed rail, a long-handled dust-pan and broom, a reacher, a wheeled shopping bag, a bed frame, and a box spring align well with these medical diagnoses.

12The applicant further supported the need for these items during his testimony. He spoke to his bed being too high to use without significant pain, and as a result had been sleeping on his sofa as it was lower and easier to access. He also described being unsteady on his feet, due to accident-related back pain that required the use of a cane, making a strong case for the installation of the recommended grab bars.

13We place little weight on the evidence provided for the respondent by Vinita Tandon, occupational therapist, who completed an IE in-home assessment report of the applicant dated July 10, 2020 and testified during the hearing. Ms. Tandon seemed uncertain about her recommendations, both in her report and in her testimony. She admitted in the hearing that she did not fully examine the bed and sofa for their height differences. Ms. Tandon accepted that the applicant sleeping on a sofa was a reasonable solution to the issues he was having with his bed. We disagree with this conclusion, due to the irregular nature of this sleeping arrangement and how the applicant testified that this caused him discomfort. We also question Ms. Tandon’s judgment regarding her denials of the grab bars in the bathroom recommended by Mr. Kaushik. She testified that she denied them primarily because the applicant demonstrated a way of clambering off the toilet by grabbing the bathroom door handle. This maneuver seems potentially unsafe, as doors move and their handles are not generally designed to take the weight that an accessibility grab bar is designed to accommodate.

14We assign significant weight to the second OCF-18, dated April 16, 2021, again due to the plan itself and the supporting testimony of Mr. Kaushik. His recommendations for a new bed frame and mattress in this treatment plan are well supported both within this treatment plan and by the medical evidence overall, for the same reasons as those noted above. His recommendation for the purchase of a tablet computer and applications to be utilized in cognitive therapy exercises is well supported by the reasons noted below.

15We find the third and fourth treatment plans for in-home occupational therapy services dated November 8, 2019 and February 26, 2021 to be reasonable and necessary, mainly for reasons related to cognitive issues. Much of the medical evidence presented by both parties supports that the applicant is suffering from cognitive and behavioural issues. The recommended treatment sessions in the disputed plans are aimed at addressing these symptoms and sequelae with education, training, and cognitive strategies.

16These cognitive and behavioural problems have been exacerbated by the accident. Some of these issues are no doubt the result of age and the applicant’s other health concerns, including hypertension, renal failure, and pancreatitis, along with his self-acknowledged history of excessive use of alcohol and smoking. High blood pressure has clearly played a significant role in the applicant’s declining health. The applicant’s daughter, Aswan Salsal, testified that her father moved back to Ottawa from Alberta in 2014 to seek medical help and the support of his three daughters after losing a job due to being diagnosed with this condition. But testimony of both the applicant and his daughter demonstrated that the applicant went into a significant decline after the accident, to the point where he wound up homeless in the summer of 2017 and then resided in a men’s shelter between September 2017 and August 2018, when he secured an apartment. According to the testimony of his daughter, the applicant was living independently with a roommate for two or three months immediately before the accident. Ms. Salsal said that her father was totally self-reliant until the accident, but that he changed dramatically afterward, becoming depressed, drinking more alcohol, and displaying behavioural changes that she had not seen before. There is no doubt that the applicant has not helped himself at times. He spent a brief period of time in a men’s shelter in 2014, and it was acknowledged in the testimony of Ms. Salsal that her and her sisters had difficulties with her father when he resided with them at various times since he moved back to Ottawa in 2014. Still, we do not believe it is a coincidence that his cognitive and behavioural abilities declined so dramatically after the accident.

17The independent medical report of Dr. Hillel Finestone, physiatrist, dated April 4, 2022, further supports this finding. It contains numerous observations about the applicant’s overall mental and physical dysfunctions as a direct result of injuries sustained in the accident. Dr. Finestone believes that these issues are causing a significant decline in the applicant’s ability to function on a daily basis. While Dr. Finestone is a physiatrist, not a psychologist or psychiatrist, this opinion holds weight as it is supported by virtually all of the medical evidence. Dr. Ritter, for example, alludes to these same problems in his IE report, and he recommends a geriatric assessment instead of physical therapy as a result. This does not correlate entirely with the occupational therapy sessions as listed in the treatment plans in dispute, although the goals of educating the applicant with regard to his accident injuries and how they have impacted on his other health concerns would seem to coincide with the goals of a geriatric assessment.

18The testimony of the applicant also supports the need for occupational therapy to address his behavioural and cognitive difficulties. During testimony, the applicant had trouble answering basic questions regarding his physical health, frame of mind, and more. Some of this confusion could be ascribed to the Somali-English translation during the applicant’s testimony, as there were some difficulties registered at one point (although the applicant did agree to continue after a brief discussion). But the applicant was encountering issues that were more comprehensive in nature than a language barrier, making it apparent that he could benefit from the sort of treatment recommended in these occupational therapy plans.

19For the reasons noted, we find that the applicant is entitled to the four treatment plans listed above, plus interest on any incurred amounts.

Physiotherapy Services Treatment Plan, $2,493.53, March 10, 2021

Kinesiology Services Treatment Plan, $3,040.68, March 4, 2021

20We find that the applicant has not met his burden for these two treatment plans and is therefore not entitled to payment or interest on same. The totality of the medical evidence and testimony provided by both parties demonstrates that the applicant would not benefit from the added physical therapy recommended in these plans. As a result, we find that these treatment plans are not reasonable and necessary.

21Medical evidence and testimony paint a picture of a man who has long been struggling with significant health issues. As alluded to above, submissions from both parties accept that the applicant is having significant problems with advancing age, uncontrolled hypertension, alcoholism, smoking, renal failure, pancreatitis, and the increasing consequences of not properly seeking out and following treatment recommendations.

22Evidence submitted in clinical notes and records (“CNRs”) as well as the testimony of the applicant’s daughter indicate that the applicant neglected his health. The applicant’s hypertension issues are noted continually in the CNRs of his family physician, Dr. Jude Sunjoh. Dr. Sunjoh regularly cites the applicant’s uncontrolled blood pressure along with continued requests that the applicant take his medication as prescribed and monitor his blood pressure at home. Medical records and hospital admission reports also show that the applicant was hospitalized on a number of occasions post-accident, at times for concerns seemingly related to his abuse of alcohol.

23Little evidence was provided that the applicant received any benefit from prior rounds of physical therapy similar to the recommendations in the two plans in dispute here, or that the applicant fully engaged in this treatment. The CNRs of Lorraine McCormack, physiotherapist, who treated the applicant in 15 sessions from July to September 2017 note little improvement through the course of treatment. Ms. McCormack describes how the applicant’s unstable blood pressure causes severe fatigue that clearly impacts on how he can take part in physical therapy or exercise. Manish Sah, physiotherapist, testified that the physiotherapy provided to the applicant resulted in minimal success, and that the applicant did not do the prescribed at-home exercises. And while Mr. Kaushik testified to his belief that the applicant required physical therapy to arrest what he saw as ongoing physical deterioration, he did not explain why this treatment would be more effective going forward than it was in the past.

24Physical therapy is also not supported by Dr. Buenger, Dr. Ritter, or Dr. Finestone. The reports of Dr. Buenger and Dr. Ritter describe an uncooperative applicant who refused to take part in aspects of their examinations even though it was apparent that the applicant could make an effort if he so desired. Dr. Buenger notes the applicant’s leg strength when he was asked to demonstrate resistance, and that the applicant should be able to move on to self-directed exercises at home. Dr. Ritter writes that the applicant made only minimal efforts to walk, flex, and bend during his examination, and that the applicant had made maximum medical recovery. Dr. Finestone’s conclusions are particularly blunt, although they do adequately summarize the general feelings of his colleagues. He finds that any physical treatment would be “doomed to failure” given the applicant’s personal behaviours that have led to the neglect of his health and have caused him to not engage with treatment offered in the past.

25Even the applicant did not fully endorse continuing with physical therapy. In his testimony, the applicant said that he was always experiencing pain as a result of the accident. While he did note that physical therapy made him feel better and more comfortable overall, resulting in better sleep for limited periods of time, he also testified that nothing changed with his overall health and mobility following these treatment sessions. While pain relief alone can be a reason to approve treatment plans, the testimony of the applicant—alongside the medical evidence described above—make it questionable that any sort of pain relief could be achieved in this sort of treatment, which hasn’t worked in the past. And there is also the question of whether the applicant would fully engage in such treatment if he were afforded the opportunity, as he did not do so in the past.

26For the reasons described above, we find that these two treatment plans have not been proven to be reasonable and necessary. The applicant is not entitled to the value of these plans, nor any interest.

Award

27We find that the applicant is not entitled to an award.

28The onus is on the applicant to prove on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of benefits so as to be entitled to an award in accordance with s. 10 of Regulation 664.

29In his written closing submissions, the applicant submits that he should be entitled to an award because the respondent: kept him within the Minor Injury Guideline (“MIG”) for too long; that the denial of the occupational therapy sessions recommended in the November 8, 2019 treatment plan was mishandled; that a prior version of the Schedule was used to adjust this claim; that Ms. Tandon was not sufficiently qualified to assess the applicant; that the insurer’s log notes provided were incomplete, delaying access to treatment; and that paying just $6,198.00 to the applicant for treatment after five years is unreasonable.

30The respondent submits in its written closing submissions that its MIG determination and denial of the occupational therapy sessions involved fair assessments of the medical evidence. The respondent admits to an inadvertent reference to the limits of attendant care under an old version of the Schedule, but that this error did not impact the applicant’s entitlement to benefits or payment of same. The respondent denies omitting anything from the log notes or acting in a “strategic” fashion to deny the applicant treatment.

31We agree with the respondent. The threshold for an award is high, and there needs to be evidence that the insurer behaved in an unreasonable fashion. Such conduct cannot be found here.

32There is nothing untoward about reviewing CNRs with regard to MIG status. Treatment records noted soft-tissue injuries as a result of the accident, as well, which means that the applicant would fall within the MIG. We accept the respondent’s assertion that the applicant’s ODSP file including a diagnosis of chronic pain was vital to the insurer’s decision to remove the applicant from the MIG. But it is clear that there were no untoward delays caused by the insurer in this matter. The ODSP file was submitted by the applicant on July 31, 2019, and the respondent removed the applicant from the MIG quite promptly on September 4, 2019.

33The mistake with regard to initially adjusting the file using the previous version of the Schedule was unfortunate, but it did not result in any prejudice to the applicant or a loss of benefits.

34With regard to criticisms of Ms. Tandon, we note that the applicant did not challenge the occupational therapist’s expertise when she provided testimony. The applicant’s argument in its written closing submissions that Ms. Tandon was unqualified because she admitted to having not received training or reviewed case law on the meaning of “reasonable and necessary” has no merit. She testified in her capacity as an occupational therapist; her familiarity with case law is not relevant.

35Making submissions about incomplete log notes without noting specific concerns and remedies also does not provide support for an award claim. More of an argument and/or evidence supporting a claim of insurer misconduct is required than unsubstantiated comments like “it is unknown what, if anything, else is missing.”

36Finally, we were not persuaded by the applicant claiming an award on the basis of an insurer approving $6,198.00 in treatment five years after an accident. The total value of monetary expenses alone never tells the complete story of medical treatment, and as a standalone measure does not support an award claim.

37For the reasons specified above, we find that the applicant is not entitled to an award.

ORDER

38The applicant is entitled to:

39The applicant is not entitled to:

i. Physiotherapy services in the amount of $2,493.53 recommended by Pro Physio & Sport Medicine Centres in a plan dated March 10, 2021.

ii. Kinesiology services in the amount of $3,040.68 recommended by Modern OT in a plan dated March 4, 2021.

iii. Interest on the above treatment plans.

40The applicant is not entitled to an award.

Released: February 23, 2023

Brett Todd Vice-Chair

Anita John Adjudicator