Citation: Bennett v. The Co-operators, 2023 ONLAT 20-014453/AABS

Licence Appeal Tribunal File Number: 20-014453/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:

Helen Bennett

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Lawson Hennick, Counsel

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Helen Bennett (“H.B.”), was involved in an automobile accident on December 5, 2018 and sought benefits from the respondent, Co-Operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). H.B. alleges she sustained concussion-like symptoms, memory difficulty, blurry vision, headaches, neck, back and hip pain, arm and hand numbness and pain, feet and calves numbness and pain, sleep issues, driving anxiety and psychological issues. Co-operators removed her from the Minor Injury Guideline (the “MIG”) based on her pre-existing fibromyalgia and spinal stenosis.

2Although she has been removed from the MIG, the onus remains on H.B. to provide that additional treatment and assessments are reasonable and necessary pursuant to the Schedule. H.B. submitted treatment plans for an occupational therapy assessment, a psychological assessment, chiropractic treatment, physiotherapy and case management services, which Co-operators denied on the basis that they were not reasonable and necessary. H.B. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

3As per the May 20, 2021 Tribunal Order, the following issues are in dispute:

a. Is the attendant care assessment in the amount of $2,200.00, proposed by Deena Rogozinsky, in a treatment plan (“OCF-18”) dated July 29, 2020, reasonable and necessary?

b. Is the psychological assessment in the amount of $2,200.00, proposed by Deena Rogozinsky, in an OCF-18 dated August 12, 2020, reasonable and necessary?

c. Is the medical benefit in the amount of $2,077.45 for chiropractic services, proposed by Dr. Doran, in an OCF-18 dated October 7, 2020, reasonable and necessary?

d. Is the medical benefit in the amount of $1,993.85 for chiropractic services, proposed by Dr. Doran, in an OCF-18 dated February 3, 2020, reasonable and necessary?

e. Is the medical benefit in the amount of $2,000.00 for physiotherapy services, proposed by Scott and Regier Chiropractic Professional Corporation in an OCF-18 dated November 9, 2020, reasonable and necessary?

f. Is the recommendation by Deena Rogozinsky, for case management services, in the amount of $2,200.00 in an OCF-18 dated August 21, 2020, reasonable and necessary?

g. Is Co-operators liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to H.B.?

h. Is H.B. entitled to interest on any overdue payment of benefits?

FINDING

4Based on a review of the evidence, I find H.B. is entitled to the following:

a. Payment for the OCF-18 for an attendant care assessment;

b. Payment for the OCF-18 for physiotherapy;

c. Interest in accordance with s. 51 of the Schedule.

5H.B. is not entitled to the following:

a. The OCF-18 for a psychological assessment;

b. The OCF-18s for chiropractic treatment;

c. The OCF-18 for case management services;

d. No interest is payable; and

e. An award.

BACKGROUND

6H.B.’s medical history, according to the Affidavit of H.B. sworn August 31, 2021, is notable for fibromyalgia with ongoing pain complaints in her neck, back, and extremities, as well as tingling and numbness in her hands and feet.

7She reported depression to Dr. Coulas, family physician, due to increased stress with family health concerns and a flood in her home. A Patient Health Questionnaire was completed on November 8, 2017, with H.B. scoring a 15, which suggested a diagnosis of major depression. On a GAD-7 assessment was also conducted on November 8, 2017, H.B. scored a 17, suggestive of severe anxiety.

8Additional medical history is noted as follows:

a. Throughout 2018, H.B. reported a worsening of her fibromyalgia symptoms;

b. On March 13, 2018, she reported a history of five recent falls to Dr. Coulas. Dr. Coulas prescribed massage therapy and referred H.B. to Dr. Briscoe, neurologist;

c. On April 23, 2018, Dr. Coulas prescribed chiropractic treatment;

d. August 24, 2018 – Dr. Coulas wrote a letter in support of a work transfer to a different office location with work modifications, noting that due to her permanent health conditions, she cannot sit for more than 30 minutes and requires a quiet work environment in order to concentrate;

e. September 4, 2018 – H.B. saw Dr. Briscoe, and described similar symptoms to those above, as well as citing stress incontinence and “lightning bolt” headaches. Dr. Briscoe noted evidence of cervical and lumbar radiculopathy. Dr. Briscoe ordered MRIs and recommended physiotherapy;

f. December 5 and 7, 2018 MRI results – degenerative changes, C5-C6 moderate spinal canal stenosis, and mild left neuroforaminal narrowing, grade 1 anterolisthesis, and mild central canal stenosis at L3-L4; and

g. H.B. did not attend physiotherapy, but continued to see her chiropractor, Ms. Doran.

ANALYSIS

Is the July 29, 2020 OCF-18 reasonable and necessary?

9In order to establish entitlement to funding for a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the claimed benefit is reasonable and necessary as a result of the accident. 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 these goals is reasonable. On the evidence, I find the OCF-18 is payable.

10H.B. submits that the occupational therapy assessment (confirmed as an in-home assessment) she incurred to determine an appropriate rate of attendant care services is reasonable and necessary. Ms. Rogozinsky, occupational therapist, conducted an assessment resulting in an October 22, 2021 report, recommending $1,231.30 per month in attendant care services through the Assessment of Attendant Care Needs (Form 1).

11Co-operators submits that although H.B. was removed from the MIG, the benefit is not available to her. It agrees that her pre-existing conditions prevent H.B. from reaching maximum medical recovery within the $3,500.00 MIG limit. However, relying on the reports of its insurer examination (“IE”) assessors, who concluded that H.B. suffered predominantly minor injuries, it purports that H.B.’s claim is subject to the MIG but not the cap on the limits.

12In support of its position, Co-operators relies on s. 25(2) and s. 14 of the Schedule.

13Section 25(2) sets out that an insurer is not required to pay for an assessment or examination conducted in the insured’s home unless the insured person has sustained an impairment that is not a minor injury.

14Section 14(2) provides that an insurer is liable to pay benefits to or on behalf of an insured person who sustains an impairment as a result of an accident….[2] “If the impairment is not a minor injury, attendant care benefits under s. 19.”

15On a plain reading of s. 14(2), an impairment that is a minor injury, must be categorized as such. Once notice is provided to an insured that they are removed from the MIG, there is no partial removal, it is a complete removal, and appropriately, the test for claims for benefits under s. 14(2) is reasonable and necessary.

16Co-operators appears to conflate the intentions of s. 25(2) and s. 14(2), in order to split the categorization of the impairments from the funding provision, this is an incorrect interpretation or application of the regulation. Co-operators goes on to further interpret s. 18(2), submitting that the section does not state that pre-existing conditions that prevent insured from recovery within the $3,500.00 limit are removed from the MIG, only that they are removed from the cap on funding from medical and rehabilitation benefits. Its position is that there is no similar language in s. 25(2) or s. 14 that would establish entitlement to the attendant care assessment solely on the basis of her pre-existing condition.

17I disagree with Co-operator’s position for several reasons. First, once an applicant is removed from the MIG, an insurer cannot split the determination to categorize the injuries as minor, but the funding limits beyond the MIG are available. Once an insured is removed from the MIG, the appropriate test for claims is whether the claimed treatment is reasonable and necessary. Second, under s. 14(2), “attendant care benefits” does not include an attendant care assessment. There is no mention of liability to pay for an attendant care assessment under s. 14(2). The benefit is potentially available as a result of the assessment. If the Schedule intended to include attendant care assessments under s. 14(2), it would have included such wording. Third, under s. 25(2), “impairments that are not a minor injury”, implies that the injuries are not categorized as such. Therefore, Co-operators, cannot take the position that H.B. has sustained minor injuries, but is beyond the treatment limits of the MIG.

18My conclusion is further supported by s. 38(3)(c)(1)B, which states:

(B) that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.

19I find the wording of s. 38(3)(c)(1)B is clear. Where there is an initial determination by an insurer that an insured suffered predominantly minor injuries, but, as a result of pre-existing medical conditions, the person no longer remains in the MIG or under the funding limits of the MIG. Once the determination has been made that H.B. is removed from the MIG based on pre-existing conditions, there is no further MIG discussion regarding her injuries and impairments. She now has access to the next level tier of funding for medical and rehabilitation benefits and assessments that are reasonable and necessary. Further, her impairments are no longer considered predominantly minor.

20In determining whether an assessment is reasonable and necessary, it is important to consider the speculative nature of assessments. The purpose of an assessment is to determine if a condition exists. In order to determine whether an assessment is reasonable and necessary, an applicant is required to point to objective evidence to establish that there are persuasive grounds to establish that the condition for which an assessment is sought, exists.

21H.B. relies on an October 22, 2021 occupational therapy report (properly noted as an in-home assessment), from Deena Rogozinsky. The assessment recommended $1,231.30 per month in attendant care services, as noted in the Form 1. This cost included 16.5 hours per week of attendant care assistance.

22Under the Level 1: Routine Personal Care Tasks, Ms. Rogozinsky observed H.B.’s demonstrated decreased standing tolerance, range of motion limitation and high levels of pain. Ms. Rogozinsky opined that H.B.’s demonstrated and reported physical abilities were below required abilities to manage personal grooming tasks. Ms. Rogozinsky concluded that H.B. required assistance with meal preparation tasks due to an inability to successfully complete the task of preparing healthy and nutritious meals. Under Level 2: Basic Supervisory Functions, Ms. Rogozinsky notes H.B. has upper and lower extremity weakness, balance issues, fatigue and pain. Ms. Rogozinsky notes that H.B. requires assistance with bedroom and bathroom hygiene tasks to ensure cleanliness is maintained. Hygiene assistance was recommended to ensure a safe, dry environment, which was considered outside of weekly housekeeping, to minimize falls. Lastly, Ms. Rogozinsky opined that H.B. required Level 3: Complex Care for assistance for transferring and mobility to the shower area and with bathing. Further assistance was recommended to ensure implementation of daily exercise, and supervision to support physical participation.

23I find Ms. Rogozinsky’s report persuasive in concluding that the ACB assessment is reasonable and necessary. As the report contains a detailed, objective analysis of H.B.’s level of function within her home, I am persuaded by the findings in the report, that such a, assessment was necessary in order to establish H.B.’s post-accident level of function in engaging in her personal care and other home-based tasks.

Is the August 12, 2020 OCF-18 reasonable and necessary?

24H.B. submits that the OCF-18 goals, noted as assessing psychological difficulties related to the accident and to plan treatment and ascertain the presence of continuing psychological complaints and mental health status, are reasonable as to address her post-accident psychological well-being. H.B relies on the previously discussed report of Ms. Rogozinsky, the records of Pikwakanagan Health Centre (which note depression and anxiety).

25I find that H.B. has not established that the OCF-18 for a psychological assessment is reasonable and necessary.

26Co-operators denied the OCF-18 on the basis that there was no evidence of a psychological injury as a result of the accident.

27On the evidence, I agree with Co-operators.

28The medical documentation shows a history of complaints with family physician, Dr. Coulas, including depression and anxiety in 2017 (husband’s health, flood in home, sister diagnosed with Stage 4 cancer). Post-accident, I note entries where H.B. speaks with Dr. Coulas about her mental well-being, appear to relate to the loss of her brother and sister. There is a November 9, 2020 entry from Dr. Coulas regarding ongoing anxiety concerns, in which H.B. requested to see a psychologist, with coverage provided through third party benefits. I note that the November 9, 2020 entry did not relate the anxiety to the accident. In addition, notes from Dr. Briscoe, physician, do not contain any notable presentations of psychological complaints.

29I also note that many of the post-accident complaints to Dr. Briscoe are for physical pain complaints, and not psychological. Other than the OCF-18, I do not find Ms. Rogozinsky’s report to be persuasive as corroborative evidence of a need for a psychological assessment. Further, Ms. Rogozinsky is not a psychologist. Lastly, H.B.’s main treating practitioner’s do not recommend psychopharmaceutical treatment or refer H.B. to a specialist.

30For these reasons, I find that the psychological assessment is not reasonable and necessary.

Are the October 7, 2020 and the February 3, 2020 OCF-18 reasonable and necessary?

31H.B. relies on the records of Pikwakanagan Health, and the OCF-18 in support of her claim for chiropractic treatment. H.B. also relies on a November 9, 2020 note from Pikwakanagan, which recommends ongoing chiropractic treatment.

32I place little weight on the records and note from Pikwakanagan for several reasons. First, the records are nearly illegible, and do not provide any post-accident recommendations for treatment. Second, the November 9, 2020 note contains no objective evidence that was relied on to determine what treatment would be appropriate. Third, although the author mentions that H.B. “will always have some degree of chronic pain”, but it is unclear what objective finding he relies on to make this observation, nor are the authors qualifications clear with regard to diagnosing chronic pain. Further, there is a difference between chronic pain, and chronic pain syndrome, which is also not distinguished in the November 2020 note.

33While Dr. Coulas has supported ongoing treatment, she did refer H.B. to a Dr. Brown, pain specialist. Dr. Brown does not recommend chiropractic treatment, but steroid injections. In addition, although H.B. has received a significant amount of chiropractic treatment, she has not reported significant improvement.

34I find that H.B. has not established, on a balance of probabilities, that the chiropractic treatment is reasonable and necessary.

Is the November 9, 2020 OCF-18 reasonable and necessary?

35H.B. relies on numerous recommendations from her treatment providers in support of her claim for this OCF-18. A September 30, 2020 Nerve Conduction Study was performed by Dr. Briscoe, neurologist, who recommended cervical physiotherapy. In a May 13, 2019 note, Dr. Brown encourages continued physiotherapy. H.B. also relies on Ms. Rogozinsky’s October 4, 2021 report, in which physiotherapy is recommended.

36In response, Co-operators relies on the May 25, 2020 insurer examination report and October 19, 2020 addendum report of Dr. Zabieliauskas in justifying the denial of the OCF-18. Dr. Zabieliauskas opined that H.B. suffered no residual accident-related impairments and noted that she has long-standing pre-existing neck and back pain.

37Dr. Zabieliauskas went on to discuss the impact of her pre-existing neck and back condition as it related to her accident-related impairments, noting that she would have taken slightly longer to recover from the uncomplicated soft tissue strain injuries she sustained. Dr. Zabieliauskas further opined that by the six-month mark, H.B. would have made a full physical recovery from the strain injuries she sustained. Interestingly, I note that Dr. Zabieliauskas comments that all H.B. has to do is continue with the exercise program prescribed by chiropractor and physiotherapist.

38I place little weight on the report and addendum of Dr. Zabieliauskas, as his reports only addresses the February 3, 2020 OCF-18 and not the November 9, 2020 OCF-18.

39I place more weight on the medical documentation that H.B. relies upon. I find that her consistent reports of pain, her actively seeking post-accident physiotherapy treatment, and the numerous recommendations for physiotherapy from her treatment providers, are persuasive. I also agree with H.B. that her own treating practitioners who have an established history with H.B. are in a better position to recommend an appropriate course of treatment for her accident-related pain complaints.

40Accordingly, I find that H.B. has established that the November 9, 2020 OCF-18 is reasonable and necessary.

Is the August 21, 2020 OCF-18 reasonable and necessary?

41Essentially, H.B. submits that the various medical issues that she suffered, psychological, cognitive, neurological, physical and emotional, are reasonable grounds for entitlement to her claim for case management services.

42In response, Co-operators submits that the OCF-18 is not reasonable and necessary as H.B. did not sustain a brain injury in the accident. Further, it submits that she was not diagnosed with a psychological impairment as a result of the accident. Co-operators relies on its insurer examinations in support of its denial of the benefit.

43While I agree with H.B. that there is no insurer examination report that addresses, the benefit, the onus remains on her to establish that it is reasonable and necessary. On the evidence, I find the case management services are not reasonable and necessary.

44Despite, H.B.’s post-accident issues, noted in paragraph 40, I find that she does not suffer an impairment to the extent that she has suffered functional limitations that require case management services. She still schedules and attends appointments for treatment, she still drives, and as of November 2020, has returned to part-time work. I am not persuaded by Ms. Rogozinsky’s recommendation in her report that case management services are reasonable and necessary.

45Where an OCF-18 fails to establish the grounds for recommendations for service, and any corroborating evidence also fails to establish why an applicant would require these services, the onus is not met. I find that H.B. has not directed me to any persuasive evidence as to why anyone other than herself would be required to handle her day-to-day affairs. There is no evidence of concern noted in any of the treatment provider records, that support that H.B. would require case management services, and I find that the OCF-18, on its own, is no persuasive.

46Accordingly, H.B. is not entitled to funding for case management services.

AWARD

47Section 10 of O. Reg. 664 permits the Tribunal to award a lump sum of up to 50 % of the amount to which the insured person (i.e., H.B.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e., Co-operators) has “unreasonably” withheld or delayed payments.

48H.B. submits that an award is justifiable on the basis that Co-operators refused to approve funding for the in-home assessment, despite her injuries being outside of the MIG. H.B.’s position is that the s. 44 assessor, Dr. Izenberg confirmed in a June 5, 2020 and October 15, 2020 report, that H.B. suffered a concussion as a result of the accident, which Co-operators failed to rely on to approve the in-home assessment. H.B. further submits that Co-operators failed to properly deny the psychological assessment with any medical justification. She submits these actions warrant the full maximum of 50% of the total benefits payable.

49I disagree.

50Regarding Dr. Izenberg’s reports, he was asked to consider the OCF-18 dated February 3, 2020. Co-operators removed H.B. from the MIG based on her documented pre-existing condition, which had nothing to do with Dr. Izenberg’s reports. It cannot be said that Co-operators did not properly rely on its own assessors reports that did not consider the OCF-18 that is not the subject of H.B.’s award claim.

51Further, I have found the OCF-18 for the in-home assessment to be reasonable and necessary, which was H.B.’s onus to meet. I found no evidence of Co-operators denial of the benefit to be unreasonable, therefore, it cannot be said that they unreasonable withheld or delayed payment of the benefit.

52Regarding the OCF-18 for the psychological assessment, having found that H.B. is not entitled to the assessment, I find that an award is not appropriate.

53On the evidence, I find that H.B. has not pointed me to persuasive evidence that Co-operators has unreasonably withheld or delayed payment of any benefits. Accordingly, I decline to grant an award.

ORDER

54H.B. is entitled to payment for the OCF-18 for an attendant care assessment and physiotherapy. Interest is payable in accordance with s. 51 of the Schedule.

55H.B. is not entitled to the OCF-18s for a psychological assessment, chiropractic treatment, or case management services. No interest is payable.

56H.B. is not entitled to an award.