Heather Fraser v. Traders General Insurance Company, 2023 CanLII 1481

Citation: Fraser v. Traders General Insurance Company, 2023 CanLII 1481

Licence Appeal Tribunal File Number: 21-000115/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:

Heather Fraser

Applicant

and

Traders General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melody Maleki-Yazdi

APPEARANCES:

For the Applicant: Loreto Scarola, Paralegal

For the Respondent: Christine McKenna, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on October 29, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues in dispute are as follows:

a. Is the applicant entitled to $1,078.29 ($2,336.48 less $1,258.19 approved) for chiropractic, massage therapy and acupuncture treatment, recommended by Complete Rehab Centre in a treatment plan (OCF-18) dated October 6, 2020?

b. Is the applicant entitled to $2,460.00 for a psychological assessment, recommended by Complete Rehab Centre in a treatment plan dated March 9, 2020?

c. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

d. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the balance of the chiropractic, massage therapy and acupuncture treatment plan or the psychological assessment as they are not reasonable and necessary. Interest and an award are not applicable.

ANALYSIS

Are the treatment plans reasonable and necessary?

4To receive payment for a treatment plan under 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.

5The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

$1,078.29 for chiropractic, massage therapy and acupuncture treatment

6The OCF-18, which was recommended by chiropractor Dr. Rahim Jessa, proposed treatment totalling $2,336.48 and was partially approved by the respondent in the amount of $1,258.19. The treatment plan recommended 16 sessions of chiropractic treatment, eight sessions of massage therapy, documentation and support activity for the claim form, TENS unit accessories, as well as 16 sessions of acupuncture. The respondent approved the following: eight of 16 sessions of chiropractic treatment, four of eight sessions of massage therapy, documentation and support activity for the claim form, TENS unit accessories, as well as eight of 16 sessions of acupuncture.

7The applicant submits that the unpaid portion of the treatment plan is reasonable and necessary based on the stated goals of pain reduction and increasing her strength, range of motion, cardiovascular fitness levels, endurance and flexibility, and improving her motor control of lumbopelvic and cervicothoracic muscles, in addition to returning to pre-accident work activities and activities of normal living. The applicant submits that the notes and records of Complete Rehab, the treatment facility that submitted the treatment plan, indicate that facility-based treatment helped improve her function and allowed her to continue working.

8The applicant submits that the respondent arbitrarily and partially approved $1,258.19 of the treatment plan with no medical reason for the denial of the balance. The applicant submits that the respondent mentions in its letter dated October 9, 2020 that the medical records provided do not support ongoing treatment of this nature, but it did not disclose what records it was referring to. The respondent then scheduled an insurer’s examination (“IE”) with a general practitioner. The respondent denied the remainder of the treatment plan on December 22, 2020.

9The applicant submits that the respondent’s IE assessor, Dr. Frank Loritz, a general practitioner, prepared an IE assessment dated December 17, 2020 in which he minimized her complaints. For example, the applicant highlights the fact that Dr. Loritz noted her driving anxiety as intermittent, which she argues is contradicting all the other medical documentation. Likewise, the applicant argues that, when Dr. Loritz summarized his assessment, he focused on the findings that were positive and minimized the applicant’s complaints. The applicant submits that Dr. Lortiz failed to review her family physician’s clinical notes and records in detail and all the other medical documentation contained within those notes and records. Furthermore, the applicant asserts that Dr. Loritz’s examination did not identify any objective impairments, which is contradictory to the applicant’s complaints during her assessment and her ongoing complaints to the treatment clinic and her family physician.

10In response, the respondent argues that the applicant has submitted no compelling medical evidence to support further physical treatment. It submits that Dr. Geordie Fallis, the applicant’s family physician, stated clearly in both his records and letters dated October 30, 2018 and January 10, 2019 that the applicant sustained only a myofascial strain of her neck. The respondent submits that, based on the information provided, the applicant had completed her physical treatment by March or April of 2019 and was discharged from her treatment by August of 2019. The Minor Injury Treatment Discharge Report (OCF-24) dated August 28, 2019 completed by Activa Brampton, indicates that the applicant was discharged from treatment and was capable of full pre-accident work activities. In addition, the applicant made no submissions for further passive or active treatment to her collateral benefits carrier between April 2019 and October 2020. Thus, the respondent submits that the applicant had recovered from her physical injuries as a result of the accident at the time the treatment plan in dispute was submitted in October 2020. The respondent submits that any continuing issues related to the applicant’s back, neck and shoulder pain were because of pre-existing shoulder/trapezius complaints and/or her 2017 motor vehicle accident. The respondent submits that this is evident in the family physician’s records which show no physical complaints for well over a year prior to the submission of the treatment plan in dispute.

11To this end, the respondent relies on Dr. Loritz’s s. 44 report, which did not identify any objective impairments of a musculoskeletal or a neurological nature. In the report, Dr. Loritz goes on to state that the applicant had reached maximum medical improvements with respect to facility-based treatment.

12On review of the submissions and the medical evidence, I agree with the respondent. Specifically, I agree that the records indicate that, in the year before the treatment plan was submitted, the applicant did not express any physical complaints to her family physician, Dr. Fallis, and Dr. Fallis did not recommend physical treatment. The applicant saw Dr. Fallis for numerous appointments in 2019, including on January 10, April 8, May 14 and November 12. The focus of these appointments included the applicant’s driving anxiety, her interest in continuing with cognitive behavioural therapy (“CBT”), driver re-education and other concerns that arose in her life, such as a house fire. A review of these notes and records indicate that the applicant did not have a concern regarding her physical impairments during this time and did not discuss them with Dr. Fallis. Considering how frequently the applicant attended Dr. Fallis’s office and the thoroughness of his notes, I find that the applicant did not have concerns regarding her physical injuries during this period.

13In 2020, the applicant’s only appointment all year appears to be on October 9, 2020, three days after the date of the treatment plan in dispute. The notes indicate that Dr. Fallis did not examine the applicant in person, but rather over FaceTime. Dr. Fallis wrote a letter dated October 9, 2020, addressed to “To Whom It May Concern,” recommending chiropractic/physiotherapy/massage and asking for the applicant to be assessed because of complaints in her right shoulder and right supra clavicular area. He also ordered imaging of her right shoulder. The imaging results dated October 19, 2020 conclude an unremarkable right shoulder ultrasound.

14Furthermore, Activa Brampton’s records indicate that she had stopped attending treatment in March 2019. The applicant did not submit claims for physical treatment (chiropractic, physiotherapy, massage therapy or acupuncture) to her collateral benefits carrier after March 1, 2019 until October 7, 2020. Given these facts, I conclude that the applicant had recovered from her physical injuries as a result of the accident by the time the treatment plan was submitted. In my view, the applicant’s submissions do not meet her burden to prove why the specific treatment is reasonable and necessary.

15In the absence of objective medical evidence to support the treatment plan, I assign significant weight to the report of Dr. Loritz, who determined that the treatment plan not reasonable and necessary. On review of the report, I find that Dr. Loritz conducted a thorough clinical examination of numerous areas of the applicant’s body, including her head, upper torso, upper extremities, axial spine and lower extremities. Based on that examination, Dr. Loritz opined that the applicant sustained myofascial sprain/strain injuries of her cervical spine (whiplash WAD-II), shoulder girdles and axial spine as a direct consequence of the accident, but that she had reached maximum medical improvement with respect to facility-based treatments and that additional facility-based treatments of a similar nature were unlikely to provide any significant long-term therapeutic benefit. I find no reason to interfere with the respondent’s determination that was based on his report.

16Accordingly, I find that the applicant is not entitled to payment for the chiropractic, massage therapy and acupuncture treatment plan as it is not reasonable and necessary. As no benefits are overdue, no interest is payable under s. 51.

$2,460.00 for a psychological assessment

17Dr. Andrew Shaul, psychologist, prepared a treatment plan for a psychological assessment in the amount of $2,460.00. Dr. Shaul recommends a psychological assessment so that the applicant’s current psychological status can be further assessed to gain a better understanding of her background, history, and past and current medical conditions and to fully understand the impact of her accident. The applicant submits that the psychological screening notes indicate that, since the accident, she has been experiencing headaches, has sleep difficulties and often feels irritable, frustrated and depressed. The notes indicate that she complains of difficulty coping with the changes in her life and is nervous, tense, and anxious. It was noted that there was a decline in her social life since the accident, after which she had gained about 30 pounds. Her driving anxiety is also noted.

18The applicant submits that she has multiple psychological concerns which she has consistently complained of to all assessors, yet the respondent has chosen to deny access to this reasonable and necessary psychological assessment. The respondent denied this assessment on June 3, 2020 based on the applicant’s injuries falling within the Minor Injury Guideline, which is no longer in dispute.

19The applicant submits that the respondent’s IE assessor, Dr. Shulamit Mor, psychologist, prepared a report dated September 3, 2020, in which he diminishes her psychological testing results which include mild range of depression; severe range for anxiety and low scores on the depression scale. He deemed an “invalid profile” when finding high levels of somatization, anxiety, psychoticism, interpersonal sensitivity, anxiety and depression. He notes that her main issue is driving anxiety and that she does not need a full psychological assessment. Dr. Mor found the treatment plan partially reasonable and necessary and noted that the assessment should not exceed eight hours. The applicant submits that, despite Dr. Mor partially approving the psychological assessment, the respondent denied the assessment in its entirety.

20On September 8, 2020, the respondent sent the applicant a letter indicating that, based on the medical documentation provided, it had determined that her injuries fell outside of the Minor Injury Guideline and requested a new treatment plan for the recommended treatment because it agreed to funding a driving assessment that Dr. Mor had recommended. The respondent indicated that the recommended treatment was a driving assessment with a driving instructor who specializes in the field and recommends a driving rehabilitation program.

21On October 9, 2020, the s. 25 driver rehabilitation evaluation report that was submitted by the applicant and proposed by Dr. Jacqueline Brunshaw, psychologist, was approved.

22The applicant completed a driver rehabilitation evaluation report dated November 28, 2020. The applicant submits that her family physician, Dr. Fallis, recommended this report. Dr. Brunshaw diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia (driving, being a passenger, being a pedestrian). Her recommendations included counselling with a particular emphasis on reducing her anxiety when in a vehicle as a driver, while being a passenger and being a pedestrian.

23In response, the respondent submits that there is no objective medical evidence supporting any psychological or psychosocial issues with respect to the accident beyond the diagnosis of driving anxiety. The respondent submits that the applicant made no psychological complaints apart from driving anxiety complaints to her family physician in the eight months following the accident. Furthermore, the respondent submits that Dr. Shaul had an incomplete picture of the applicant’s pre-accident and post-accident history. Specifically, Dr. Shaul had no knowledge of the applicant’s assessment with Dr. Judith Pilowsky, psychologist, prior to the subject accident, post-traumatic stress disorder relating to her house burning down and her counselling treatment with Dr. Ziyad Altaweel in March to May of 2020. The respondent submits that the applicant stated to Dr. Brunshaw that she had received psychotherapy through her Employee Assistance Program and then private counselling in Hamilton.

24The respondent relies on the s. 44 report of Dr. Mor. In the report, Dr. Mor diagnosed Specific Phobia, situational (vehicular), related to the subject accident. He opined that this diagnosis took the applicant out of the Minor Injury Guideline parameters; however, Dr. Mor determined that the applicant did not need a full psychological assessment, but rather a driving assessment. The respondent submits that the applicant has not proven that the psychological assessment is reasonable and necessary as a result of the accident where only an increase in driving anxiety is definitively linked to the accident.

25In the alternative, the respondent submits that the driving assessment conducted by Dr. Brunshaw is effectively a psychological assessment in that it included an interview, psychological testing, and formulated diagnoses and recommendations. The respondent submits it is far more comprehensive than what was recommended by Dr. Mor. The respondent submits that Dr. Brunshaw’s report included a clinical interview, administering of the Beck Depression Inventory and Beck Anxiety Inventory, as well as diagnoses and recommendations for treatment.

26On review of the submissions and the medical evidence, I agree with the respondent that the treatment plan for a psychological assessment would be a duplication of the driver rehabilitation evaluation report. The tests administered for the driver rehabilitation evaluation report were the Driving Anxiety Questionnaire, and the Beck Depression Inventory – II (BDI-II) and Beck Anxiety Inventory (BAI), which are questionnaires that address more general psychological and mental health impairments. Dr. Brunshaw notes in her report that the BDI-II is designed to measure one’s degree of depression, while the BAI is designed to measure one’s level of anxiety. Therefore, I find that Dr. Brunshaw had assessed and evaluated general psychological issues aside from the driving anxiety concerns as well. Furthermore, Dr. Brunshaw made psychological diagnoses as a result of her assessment of the applicant.

27Furthermore, the records indicate that the focus of the applicant’s psychological concerns have always been her driving anxiety. Given that, Dr. Brunshaw’s driving assessment is the most appropriate assessment. Dr. Fallis wrote letters addressed to “To Whom It May Concern” on January 10, 2019 and November 12, 2019, in which he indicated that the applicant was still having issues regarding her phobia for driving and recommending CBT. He also wrote another letter dated November 12, 2019, indicating that the applicant would benefit from driver retraining as part of her post-traumatic stress recovery due to car accidents. There is also a letter from an Employee Health Management Specialist with the Scarborough Health Network dated April 23, 2019, which confirms a letter from Dr. Fallis indicating that the applicant requires accommodation of "no night shifts" and that she has post-traumatic stress and anxiety, and is not comfortable driving to work.

28Accordingly, I find that the applicant is not entitled to payment for the psychological assessment as it is not reasonable and necessary. As no benefits are overdue, no interest is payable under s. 51.

29While the applicant sought an award under s. 10 of O. Reg. 664, I find an award is not appropriate. Under s. 10, the Tribunal may award up to 50 percent of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed payment. Having determined that the treatment plans are not payable, it follows that the Tribunal cannot order an award. In any case, I find no evidence that the respondent unreasonably withheld payment for the treatment plans to justify a s. 10 award.

CONCLUSION AND ORDER

30The applicant is not entitled to the balance of the chiropractic, massage therapy and acupuncture treatment plan or the psychological assessment as they are not reasonable and necessary. Interest and an award are not applicable.

Footnotes

1. 1O. Reg. 34/10.