Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 20-003059/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:
Prabir Kar
Applicant
and
Scottish & York
Respondent
DECISION
VICE-CHAIR: Ian Maedel
APPEARANCES:
For the Applicant: Ariane Wiseman, Counsel
For the Respondent: Riley Groskopf, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on February 26, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2Prior to the filing of this application, Vice-Chair Boyce released a related Decision on November 25, 2020. He determined that the applicant suffered from chronic pain and psychological impairments as a result of this accident, warranting removal from the MIG.1
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to a cost of examination expense in the amount of $2,350.00 for a chronic pain assessment recommended by Canadian Active Rehabilitation Centre in a treatment plan (“OCF-18”) denied by the respondent on December 17, 2019?
ii. Is the applicant entitled to a medical benefit in the amount of $2,215.00 for physiotherapy services recommended by Activa Scarborough in an OCF-18 denied by the respondent on January 22, 2021?
iii. Is the applicant entitled to a medical benefit in the amount of $3,715.87 for psychological services recommended by Assurance Medical Services in an OCF-18 denied by the respondent on June 17, 2020?
iv. Is the applicant entitled to $4,672.20 for physical rehabilitation treatment and assistive devices recommended by Dr. Alireza Kachooie in an OCF-18 denied by the respondent on June 7, 2021?
v. Is the applicant entitled to $2,215.00 for physiotherapy treatment recommended by Bhuvanben Parmar in an OCF-18 denied by the respondent on January 22, 2021?
vi. Is the applicant entitled to $2,089.36 for an orthopaedic mattress recommended by Srikanth Iahoti in an OCF-18 denied by the respondent on August 5, 2021?
vii. Is the applicant entitled to payment in the amount of $199.99 for an elbow brace as per the Expenses Claim Form (“OCF-6”) submitted January 6, 2020?
viii. Is the respondent liable to pay an award pursuant to s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
4Resolved Issues: In his reply, the applicant indicated that two issues were withdrawn: issue i above for a chronic pain assessment and issue v above for physiotherapy treatment.
RESULT
5I am persuaded that the applicant has established that further facility-based treatment and a back support are reasonable and necessary, pursuant to the Schedule. This treatment includes physiotherapy, physical rehabilitation, and acupuncture treatment.
6However, I am not persuaded the applicant has established that the other requested assistive devices are reasonable and necessary.
ANALYSIS
7Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant, so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
8The applicant bears the onus of proving entitlement to the proposed treatment by proving that the OCF-18 is reasonable and necessary on a balance of probabilities.2 To do so, the applicant should identify the goals of treatment, how the goals would be met through the requested services/items, and that the overall costs of achieving them are reasonable.
OCF-18 for Physiotherapy Services
9I am persuaded that physiotherapy treatment in the amount of $2,195.00 (the value of the treatment plan at $2,215.00, less $20.00 for TENS accessories) is reasonable and necessary pursuant to the Schedule.
10Bhavnaben Amitkumar Parmar, physiotherapist, completed this OCF-18 (dated January 9, 2021). The plan recommended 20 sessions of physiotherapy. It lists the treatment goals as: pain reduction, increase in strength, increased range of motion, and improved joint mobility. It also prescribed a home exercise program.
11The applicant submits that pain management is a legitimate goal of ongoing facility-based treatment, including physiotherapy and chiropractic services. In the absence of funding from the insurer, the applicant has been self-funding this treatment and receiving therapeutic benefit, namely pain relief and functionality.
12I find the applicant’s pre-accident and post-accident medical records support the reasonable and necessary nature of this plan, as they demonstrate how facility-based treatment has assisted the applicant’s management of pain.
13The clinical records of Activa Scarborough do indicate the applicant subjectively reported less pain in his lower back approximately twelve times between January 13, 2018 and March 31, 2018 when he attended for active therapy and chiropractic treatments. However, I note these improvements were noted almost three years prior to the treatment plan at issue.
14The applicant was treated by Dr. Nima Pardisinia, chiropractor, at Simply Align Rehab. On September 23, 2019, this practitioner diagnosed the applicant with low back pain, chronic recurrent, with associated symptoms of pain, range of motion reductions and functional difficulties. At that time the applicant reported his back pain to be 7/10. By October 11, 2019, the applicant reported improvements with therapies and treatment, including the application of heat to his lower back.
15Prior to the accident the applicant was under the care of Dr. Julian Chen, pain specialist lower back pain and received interventional pain management in the form of injections. Commencing in May 2016, this treatment was meant to address chronic pain in his lower back and hips. Aside from a brief five-month period prior to the accident, the applicant received pain treatment from Dr. Chen into the post-accident period. By September 2019 the applicant indicated his back and hip pain had improved to 6/10.
16The applicant also relies on the assessment undertaken by Dr. Nimrit Dhillon, internal medicine and rheumatology specialist dated November 27, 2019. At that time, the applicant reported his pain level was 4/10, having been 8-9/10 without interventions. He noted a history of lower back pain managed previously with interventional trigger point injections and concluded the subject accident has aggravated the applicant’s pre-existing, mechanical back pain. He diagnosed the applicant with chronic, musculoskeletal pain involving the lower back and intermittent symptoms (including neck and right shoulder pain). Finally, he commented that it was possible the applicant had reached maximum medical recovery, but the objective of ongoing treatment would be to maintain, if not improve, his current range of motion and function.
17The respondent submits the applicant has failed to adduce any evidence that further facility-based treatment will provide pain relief. Despite the extended period of treatment since the accident, the applicant has reported no consistent reduction in pain.
18The respondent relies on the report of Dr. Michael Hanna, family physician dated February 4, 2021. Following an in-person assessment and a comprehensive review of the clinical notes and records, Dr. Hanna diagnosed the applicant with myofascial sprain/strain of the cervical, thoracic and lumbar regions of his back, as well as right elbow sprain/strain. However, in relation to validity testing, it was noted there was evidence to suggest malingering or feigning and the results should be interpreted with caution. He concluded that it had been three years since the subject accident, and the applicant had reached maximum medical recovery from his physical injuries.
19In a paper review (also dated February 4, 2021), Dr. Hanna specifically addressed this OCF-18 for physiotherapy. He reiterated the validity concerns and indicated the reported functional limitations could not be explained by the soft tissue injuries sustained in the accident. He opined that the treatment plan at issue was not reasonable and necessary, as the applicant had reached maximal medical improvement and further facility-based treatment would not be of any benefit.
20When I consider the totality of the evidence tendered, I am persuaded that additional physiotherapy treatment is reasonable and necessary pursuant to the Schedule. The applicant has already been found to be suffering from chronic pain which was exacerbated by the subject accident. From the comprehensive clinical records provided, it is clear the applicant has received some therapeutic benefit from the treatment provided, specific to his pain relief and functionality. Pain relief is a legitimate goal of ongoing facility-based treatment, including physiotherapy and chiropractic treatment. Dr. Hanna failed to address pain relief as a treatment goal in his reports, and he instead focused on the nature of the soft-tissue injuries sustained and the alleged impact on the applicant’s functionality.
21However, when I examine the breakdown in services for this treatment plan, I am not persuaded the cost of TENS unit accessories in the amount of $20.00 is reasonable and necessary. I have determined below that the cost of a TENS unit is not reasonable and necessary. Thus, this amount shall be deducted from the total cost of the treatment plan. This results in an amount of $2,195.00.
22Thus, I am persuaded the physiotherapy treatment in the amount of $2,195.00 is reasonable and necessary, pursuant to the Schedule.
OCF-18 for Physical Rehabilitation, Acupuncture and Assistive Devices
23I am persuaded that this treatment plan is partially reasonable and necessary in the amount of $3,077.20 ($4,672.20 - $1,595.00) pursuant to the Schedule.
24Dr. Alireza Kachooie, physiatrist, completed this OCF-18 (dated March 4, 2021) in the amount of $4,672.00. This plan includes: 20 sessions of physical rehabilitation, 10 sessions of acupuncture, a TENS unit, a back support, cervical pillow, educational supports, and a personal massager. Treatment goals include: pain reduction, increase in strength, increased range of motion and return to activities of daily living.
25A treatment plan on its own is not compelling evidence in support of treatment. There must be compelling, contemporaneous evidence in support of the treatment plan. The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary.
26As noted above, the applicant has provided a significant treatment record in relation to his chronic lower back and shoulder pain following the accident. This includes records of Activa Scarborough, Dr. Pardisinia, Dr. Chen, and the assessment of Dr. Dhillon. As canvassed above, I am persuaded the applicant has received some therapeutic benefit specific to pain relief and functionality as a result of facility-based treatment.
27In addition to his initial report (dated February 4, 2021), the respondent relies on a paper review provided by Dr. Hanna (dated May 31, 2021) specific to this treatment plan in dispute. Dr. Hanna echoed his previous conclusions, stating the applicant had sustained temporary soft-tissue injuries and that—in the three years since the accident—he had achieved maximal medical improvement. Finally, he opined that further facility-based treatment would not be of any benefit.
28Again, I disagree with Dr. Hanna, who specifically failed to address pain relief and functionality as a treatment goal. Based on the treatment records provided, I am persuaded that further facility-based treatment is reasonable and necessary. However, I am not persuaded that all of the treatment laid out in this particular treatment plan are reasonable and necessary.
29The applicant is employed as a credit analyst, often working up to six days a week. Given the sedentary nature of his employment and his demonstrated chronic back pain, I am persuaded that a back support is reasonable and necessary pursuant to the Schedule.
30However, the applicant has failed to establish a TENS unit, the personal massager, nor sacro-iliac belt are reasonable and necessary pursuant to the goal of pain relief. While I do not doubt that, in theory, the use these devices may permit a patient greater capability to engage in restorative therapy for acute and chronic conditions. But I have been provided no compelling evidence to support that use of these devices would lead to a reduction in pain or an increase in this particular applicant’s functionality.
31Similarly, I am not persuaded that the applicant has established a cervical pillow will assist with pain relief or functionality. While it has been established the applicant suffers chronic lower back pain exacerbated by the accident, there has been no mention of any therapeutic benefit provided by a cervical pillow in the evidence tendered. I have the same concerns about a lack of evidence linking the requested education funding in the OCF-18 to the applicant’s pain relief or functionality.
32However, based on the clinical notes and records, the assessments provided, and the previous Tribunal decision based on the applicant’s chronic pain, I am persuaded that the physical rehabilitation, acupuncture, back support, and are all reasonable and necessary expenses. Again, this is specific to the treatment goals of pain reduction and increasing the applicant’s daily functionality. Thus, I am persuaded that this treatment plan is partially reasonable and necessary in the amount of $3,077.20.
Section 38 of the Schedule
33Related to this treatment plan, the applicant also argued that the respondent breached s. 38(8), such that certain amounts of the OCF-18 are now payable pursuant to s. 38(11). I do not agree.
34Section 38(8) of the Schedule states that, within 10 business days after it receives the OCF-18, the insurer shall give the insured person a notice that identifies the goods and services the insurer agrees to pay for, does not agree to pay for, and the medical and other reasons why the insurer considers the goods or services not to be reasonable and necessary.
35Section 38(11) states that, if the insurer fails to provide a compliant notice with s. 38(8), the insurer shall pay for all goods and services described in that OCF-18 that have been incurred during the period following ten business days from its submission (up and until a valid denial is issued, if any).
36The applicant submits that the treatment plan in the amount of $4,672.20 was submitted May 3, 2021 and denied June 7, 2021. It was not sent on the 11th day as per s. 38(8) of the Schedule, therefore, the respondent is required to pay $173.86 for the incurred treatment during this period.
37The respondent submits the applicant was provided with a valid denial in the Explanation of Benefits (“EOB”, dated May 17, 2021). The EOB included the correct details to constitute an unequivocal denial, pending the results of the scheduled paper review with Dr. Hanna.
38In reply submissions, the applicant then claimed that the incurred treatment from the 11th business day to the date of the reply submissions was in the amount of $1,690.88. The applicant further submitted the respondent breached s. 38(8), as the denial was not served on the insured person, but rather on applicant’s counsel.
39In a Motion Order (dated December 17, 2021), Adjudicator Mazerolle permitted the respondent to file sur-reply submissions related to s. 38 and one of the denied treatment plans at issue. In the sur-reply, the respondent submitted the EOB was served via email on both the applicant and counsel. In the alternative, it argued service upon counsel was adequate for notification of the denial, pursuant to s. 38(8) of the Schedule. The respondent also submitted the applicant’s counsel was listed as the preferred contact information in the Application for Accident Benefits (dated April 19, 2017).
40I am satisfied that the EOB was served on the applicant and applicant’s counsel via email. I am further satisfied that service of the EOB on applicant counsel was sufficient to satisfy the service criteria set out in s. 38(8) of the Schedule.
OCF-18 for an Orthopaedic Mattress
41I am not persuaded that $2,089.36 for an orthopaedic mattress is reasonable and necessary pursuant to the Schedule. Funding for this mattress is detailed in an OCF-18 by Srikanth Lahoti, physiotherapist (dated June 17, 2021). The treatment goals include: pain reduction, increase in strength, increased range of motion and return to activities of normal living.
42The applicant submits that an orthopaedic mattress will support his back and provide body alignment for a comfortable sleep to address his chronic pain. The applicant further submits that sleeping difficulties are partially due to the accident, and, as a result, the mattress is reasonable and necessary. I disagree.
43Dr. Chen identified nocturnal pain and poor sleep as early as June 15, 2016 and noted obstructive sleep apnea requiring a continuous positive airway pressure machine. While Dr. Dhillon did comment on limb jerking, somatic symptoms, and disturbed sleep following the November 2019 assessment, there was no recommendation made for an orthopaedic mattress to address chronic pain.
44Neurologist Dr. Neal Parekh examined the applicant related to nocturnal hypnic jerks in December 2018 and followed up in February 2019. Again, these symptoms were not linked to chronic pain, nor the accident at issue.
45Based on the evidence, I am not persuaded the cost of an orthopaedic mattress is reasonable and necessary pursuant to the Schedule. Given the lack of any link between the applicant’s pain and the need for an orthopaedic mattress, I cannot conclude it is reasonably and necessary pursuant to the Schedule.
OCF-6 for an Elbow Brace
46The applicant has claimed $199.99 for an elbow brace, by way of an OCF-6 (dated January 6, 2020). I am not persuaded this expense is reasonable and necessary pursuant to the Schedule.
47The applicant has not provided any clinical notes and records to support the claim for this assistive device. Instead, the applicant relies on the opinions provided by Dr. Hanna in his reports. In Dr. Hanna’s initial report from February 2021, he diagnosed the applicant soft tissue injuries including right elbow sprain and strain. He maintained this opinion in subsequent paper reviews, but clearly stated the applicant had reached maximal medical recovery.
48Despite the significant amount of medical evidence otherwise provided, the applicant relies almost solely on the OCF-6 itself to establish this brace is reasonable and necessary. Dr. Hanna diagnosed the applicant with a sprain and strain of the elbow as a result of the accident, but he did not recommend any additional treatment or assistive device. When I consider the evidence tendered, I am not persuaded this expense is reasonable and necessary.
OCF-18 for Psychological Services
49I am persuaded that psychological services in the amount of $3,715.87 are reasonable and necessary pursuant to the Schedule.
50In the OCF-18 (dated June 3, 2020), Dr. Mandeep Kaur Singh, psychological associate, recommended twelve psychotherapy sessions, a reassessment, a progress/discharge report, and documentation. Together, these services amounted to $3,715.87.
51The applicant relies on the Psychological Assessment Report by Dr. Singh and Komal Preet, Registered Psychotherapist (dated June 2, 2020). In addition to a clinical interview, five psychometric procedures were administered under Dr. Singh’s supervision. It was noted that the applicant had previously been prescribed Cymbalta by his family physician for depressive symptoms in September 2019. The applicant also reported low mood, irritability, frustration and agitation.
52In the end, Dr. Kaur diagnosed the applicant with adjustment disorder with depressed mood, persistent. She recommended twelve sessions of cognitive behavioural therapy to reduce the level of psychological distress and restore pre-accident functioning.
53The applicant also relies on the aforementioned report of Dr. Dhillon. Specifically, the applicant again reported low mood and a prescription for Cymbalta by his family physician in September 2019. In his conclusion, Dr. Dhillon noted somatic symptoms in conjunction with chronic pain disorder. He further noted that chronic pain may lead to functional impairment, disturbed mood and poor sleep. Given the severity of symptoms and possible co-existing psychological disorders, he noted the prognosis for recovery was guarded. In addition to a multimodal pain program, he recommended an assessment by a psychologist or psychiatrist.
54The clinical notes and records provided by the parties also include references to potential psychological impairments. The applicant’s family physician, Dr. Mohammed, noted the applicant reported driving anxiety following the accident on March 2, 2017. In a consultation note to Dr. Mohammed (dated August 26, 2019), Dr. Chen indicated referrals to several practitioners were required, including a psychiatrist for pain-related issues.
55The respondent relies on the Psychological Assessment Report provided by Dr. Rakesh Ratti (dated February 4, 2021). In addition to a clinical interview, four psychometric tests were administered. It was noted that the Millon Clinical Multiaxial Inventory-III results suggested over-reporting of symptoms and significant exaggeration, raising requestions of the credibility of the test results. Otherwise, Dr. Ratti noted insufficient evidence to draw any conclusions regarding the presence of significant emotional/psychological distress. He concluded that there was no evidence of psychological factors that would result in functional limitations, nor any credible evidence to support a mental health diagnosis.
56In a Psychological Addendum Report (dated August 25, 2021), Dr. Ratti reviewed additional clinical notes and records and the OCF-3 (dated January 22, 2021). He noted that his opinion remained unchanged.
57The respondent contends that both the reports by Dr. Ratti and Dr. Hanna raised issues regarding credibility or validity testing that may have impacted the results of their respective reports.
58While I am alive to these credibility and validity concerns, the totality of the evidence allows me to find that this OCF-18 for psychological services is reasonable and necessary.
59First, the evidence establishes the applicant suffered from pre-accident chronic pain, and, according to Vice-Chair Boyce, this pain was exacerbated by the accident. Similarly, Dr. Chen’s records demonstrate a significant pattern of reporting related to ongoing pain post-accident, including the somatization of pain later highlighted by Dr. Dhillon. I am satisfied there is a causal link between the applicant’s chronic pain and psychological symptoms. Second, the applicant reported psychological symptoms, including reports of depression and anxiety that led to the prescription of Cymbalta by his family physician in 2019. The clinical notes and records also indicate referrals for psychological symptoms.
60Therefore, when I consider the pattern of reported pain and psychological symptoms, along with the diagnosis made by Dr. Singh, I am persuaded that this OCF-18 for psychological services is reasonable and necessary pursuant to the Schedule.
Award and Interest
61I am not persuaded the applicant is entitled to an award pursuant to s. 10 of Regulation 664.
62The respondent had an ongoing obligation to adjust the file. This obligation included conducting additional s. 44 IEs on subsequent OCF-18s as they were submitted to the insurer. I do not otherwise view this an “abdication” of the respondent’s decision-making responsibilities, as the applicant submits. Despite the previous Tribunal decision, the disputed treatment must still be reasonable and necessary pursuant to the Schedule. In my view, the respondent has held the applicant to the legal standard set out in the Schedule, which does not constitute an unreasonable delay or withholding of benefits. Thus, the applicant’s claim for an award shall be dismissed.
63The applicant is entitled to applicable interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
ORDER
64I find:
i. The applicant is entitled to physiotherapy treatment in the amount of $2,195.00;
ii. The applicant is entitled to physical rehabilitation, acupuncture, and a back support in the amount of $3,077.20; and
iii. The applicant is entitled to psychological services in the amount of $3,715.87;
iv. The applicant is entitled to any appliable interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule;
v. The applicant is not entitled to the remaining benefits claimed above, nor is he entitled to an award pursuant to s. 10 of Regulation 664.
Released: January 12, 2023
Ian Maedel
Vice-Chair
Footnotes
- P.K. v. Aviva Insurance Canada 2020 ONLAT 19-006570/AABS.
- Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.